Parental Kidnapping

Approximately 800,000 children annually are reported missing, according to U.S. Department of Justice statistics—a staggering 2,000 minors daily on average. Family members account for 203,000, more than a quarter, of these child abductions, the National Center for Missing and Exploited Children (“NCMEC”) claims. In 78 percent of child kidnappings, the offender was the noncustodial parent, according to the National Incidence Studies of Missing, Abducted, Runaway and Thrownaway Children (“NISMART”).

Among the reasons cited by parents for violating the custody or visitation rights of their mates by abducting their children are to punish the non-offending parent or to compel reconciliation with the estranged parent. Fear of losing custody or visitation rights, and, in rare instances, shielding the minor from an alleged neglectful or physically or sexually abusive parent, are other reasons underlying parental kidnapping.

Under Massachusetts law, a minor’s relative who takes a child from his or her custodian without lawful authority and intends to hold the youth “permanently or for a protracted period,” is subject to a maximum one year in prison, a thousand-dollar fine, or both. Unlawfully removing the child from the Commonwealth and exposing the minor to danger is punishable by up to a $5,000 fine and a maximum five-year prison term.

Often, an accused parental kidnapper also faces a charge of violating a restraining order. Violation of such an order could result in a maximum fine of $5,000 and up to two-and-a-half years in prison.

Criminal liability against a parent as outlined above pre-supposes an existing court-issued custody order concerning the parents’ children. In a 1989 case, a woman took her five- and three-year-old sons from their Massachusetts home and relocated to Puerto Rico ten days before her estranged husband obtained a temporary custody order, unbeknownst to her.

The mother was arrested for parental kidnapping. The Supreme Judicial Court acknowledged the presumption under Massachusetts law that both parents have equal custodial rights of their children. The Court concluded that a parent who takes his or her children from the other parent before any court proceeding has generated a custody order is not acting “without lawful authority” as defined by the Commonwealth’s statute, and cannot be convicted of parental kidnapping.

At the national level, the Federal Parental Kidnapping Prevention Act requires every state’s appropriate authorities to enforce and not modify (with certain exceptions) any child custody determination made by another state’s court. This full faith and credit provision means that if another state having jurisdiction over a child custody question has pending custody proceedings outside the Commonwealth, a Massachusetts judge, for example, cannot issue a custody order in a non-emergency care and protection hearing involving the same minor without running afoul of the federal Act. The federal statute prevents two states from concurrently assuming jurisdiction over the same custody matter. It considers the resident state of the child or either parent to be the proper forum to resolve the dispute.

Unfortunately, sometimes—especially in particularly contentious divorce proceedings—family lawyers confront false kidnapping claims. Sometimes, these are brought by a vengeful custodial parent against a defendant parent during the latter’s designated visitation period when a child is returned late to the custodial parent. In such instances, experienced divorce counsel can refute spurious accusations through proof that unforeseen circumstances, such as traffic congestion, a delayed or cancelled flight or unexpected injury or illness caused the visitation to exceed the allotted time.

In other cases, noncustodial parents, fearful that their children are targets of physical or mental abuse by the custodial parent, may not return the child after a scheduled visit. When such unilateral action is taken, experienced divorce attorneys will seek relief from the probate court by arguing that the noncustodial parent was acting in the best interest of the child by protecting the youth from an unsafe home environment.

Under Massachusetts law, either spouse in a pending divorce action may petition the Probate and Family Court to issue an order to prohibit the other spouse from imposing any restraint on the personal liberty of the petitioner or his or her minor children during the pendency of the divorce proceedings. Likewise, by statute, a minor over whom a Massachusetts probate court has jurisdiction, either because the child was born, or has resided for at least five years, in the Commonwealth, cannot be removed from Massachusetts without the child’s consent, if he or she is of “suitable age” to give it. If the child is too young to consent, the child cannot be removed without the approval of both parents, unless the Court, upon cause shown, otherwise orders.

If you have any questions about child custody or support or any other issues regarding family law, 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.

 

 

 

 

 

What constitutes marital property in Massachusetts?

Marital property is distributed in Massachusetts divorce cases under the “equitable distribution” standard. Unlike some other states with “community property laws,” Massachusetts courts divide marital property by in an equitable, or fair, manner.

In Massachusetts, marital property includes all items, interests, and possessions attained by a couple during their marriage. Martial property in Massachusetts is not considered to be property that is acquired by any party before the marriage began. Property that was acquired before the marriage began is typically considered to be separate property that is not divisible by the court.

Separate property

Under some circumstances, it is possible that separate property may be considered to be marital property. Take, for example, a long-term marriage where the parties’ separate property is quite imbalanced: one spouse entered the marriage with considerable assets, while the other had few assets at the time. The parties may have become accustomed to a certain standard of living during their marriage, and the judge may consider some separate property (acquired prior to the marriage) to be marital property, in the interests of fair and equitable division. This consideration is dependent on the facts and circumstances of each individual divorce case. It is important to speak with a competent divorce attorney about this issue of marital and separate property, as this may impact your individual case.

Division by agreement

Parties in a marriage may decide that they want to divide their property on their one. This is done by agreeing on which property to divide. Once an agreement is made, it is written down as a “property settlement agreement.” With the agreement to divide property, parties submit the agreement to a Massachusetts Probate and Family Court. The judge then considers the agreement in the final divorce order. A judge would likely support a fair and reasonable distribution of their assets.

Equitable distribution

If the parties cannot agree about the division of their property on their own, the parties’ property is divided by a Massachusetts Family Court on an equitable basis. Equitable does not necessarily mean equal. Equitable uses several factors to determine the fair division of assets. These factors include: length of the marriage; conduct of the parties during the marriage; age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of the parties; opportunity of each for future acquisition of capital assets and income; amount and duration of alimony; present and future needs of dependent children of the marriage; and contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

Types of marital property

Property in a divorce could be any of the following: house(s) and real estate, car(s), furniture, art, jewelry, bank accounts, bonds, boats, policies, plans, pensions, stock options, accounts, coin or collections, wine collections, and more. While Massachusetts considers companion and other animals to be property, judges in Massachusetts may look to see the party who is the primary handler of the animal. There is a growing trend in other states that companion animals will be awarded to a party based upon what is best for the animal. This standard is not yet in Massachusetts, so dogs and cats, and other animals, are considered to be property as well.

There are some other assets that a party in a divorce may be entitled to: stock retirement accounts (401K and pension plans), deferred compensation plans from previous employers, capital losses from previous tax years, cemetery plans or plots, all collections with value, memberships to clubs, gifts, intellectual property such as trademarks, patents, copyrights, and royalty rights, lottery tickets, loans, travel rewards, and more.

If a party owns a business, it is also important to speak with a Massachusetts divorce lawyer about the ways that business ownership may impact the distribution of property in a divorce, especially as business gains are managed and salaries are paid.

To provide an example: Billy and Jean decide to divorce. Billy, a musician, owns an upcoming music label, which he created after is married Jean. Billy also owns the rights to several of his original songs that he recorded on his label. Billy and Jean have a joint bank account that they opened prior to their marriage, but that they regularly used during their 5-year marriage. The couple has a house, no kids, and Jean does not work. They each have a vehicle, but Billy’s car is worth two times more than Jean’s car. What property can be distributed? In Massachusetts, absent a marital agreement, a judge would likely consider the business earnings and future royalty earnings in the divorce decree. The judge would also equitably divide their earnings, the joint account, the value of the house, and their vehicles in an order for the equitable distribution of their property.

No two family law or divorce cases are alike. 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.

 

 

 

Alimony and Gross Income Calculations

What are “gross income” tax implications of alimony payments? Alimony is court-ordered support from one spouse to another under a divorce or separation agreement. The purpose of alimony is to allow a receiving spouse to endure the same or similar type of lifestyle that he or she had during the marriage relationship.

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. This ensures that alimony payments do not endure if their endurance would be unequitable, or unfair. The goal in Massachusetts is to achieve an equitable result based upon several factors about the marriage relationship.

It is important to note that child support is separate from alimony. Child support is awarded to a custodial parent, so that the children are financially supported when a divorce occurs between a child’s or children’s parents.

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

People who pay or receive alimony payments need to consider the “gross income” tax implications that are invoked with the paying and receiving of alimony payments in a divorce. This is an important consideration that should be handled between an experienced family law attorney and tax professional, especially since income is handled on a federal and state level.

For example, suppose that a couple is divorced in Massachusetts. The judge orders that the former husband pay $2,000.00 each month to the former wife. Are any of the former husband’s payments to his ex-wife deductible? In other words, how may the husband handle the alimony payments that he makes to his wife for tax purposes? The law states that a party’s alimony payments are deductible from gross income by the payer, and are included in gross income by the collecting spouse. Any alimony received is included in federal gross income and therefore must be included as Massachusetts gross income. With the example mentioned, the husband is likely able to deduct his alimony payments that he transacts to his ex-spouse. The former wife will have to include the payments that she receives as her income.

If the former husband and former wife in the aforementioned example have a child or children together and the former husband is ordered to also pay for child support, may the former husband include any child support payments as an alimony deduction? No, because the law states that a child support payment does not qualify as an alimony deduction and any amounts are not included as gross income by the recipient, which, in this example, is the former wife.

Here is an example: Sally and Joe decide to divorce. Sally and Joe have three children together between the ages of 6 and 14. Sally works as a public school teacher in an inner-city school and earns $45,000 per year. Joe is a CEO of a company and earns $170,000 per year. A Massachusetts justice of the Family Court ordered that Joe make alimony payments to Sally in the divorce decree. Additionally, the judge ordered that Sally will have custody of the children, but Joe will make child support payments to Sally for the children. Sally and Joe want to know whether they must include the alimony and child support payments on their tax returns.

Because Joe is the person making the alimony payments to Sally, Joe may deduct his alimony payments on his tax returns. Sally, however, must include any alimony payments that she receives as “gross income.” Joe may not deduct child support payments and Sally should not include child support payments as income on her taxes; child support payments are awarded for the “best interest of the children.”

Massachusetts alimony and child support issues are nuanced and complex. If you have any questions about divorce, family law, child support, alimony, or more, please contact our competent attorneys. You may schedule a free consultation with an experienced divorce law attorney or 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.

Automatic Restraining Order Upon Filing for Divorce

Suppose Jack filed for divorce, and Jill is left confused, unaware of what comes next in the divorce proceedings. Jill is served the divorce papers and realizes that there is an automatic restraining order as part of the summons and complaint. Frantically, she calls a divorce attorney, wondering if a restraining order is all about. Could it mean she cannot have contact with her ex-spouse? Is it possible that she won’t be able to access her financial accounts or her home?

As divorce attorneys, we receive many inquiries regarding the initial paperwork filed in a divorce proceeding. Whether you filed for divorce or are defending a divorce action, you may have heard that Massachusetts Probate and Family Court attaches an automatic restraining order against the defendant spouse at the time of the divorce filing. What is an automatic restraining order; how can you follow it; and what are the sanctions for not following it?

In every Massachusetts divorce case, there is an automatic restraining order. This automatic restraining order is present when the plaintiff-spouse files for divorce, and when the defendant-spouse is served the initial divorce complaint it as part of the Summons. The automatic restraining order is present throughout the entire divorce case, unless modified by agreement of the parties or order of the Court. Upon entry of the divorce judgment or decree, the automatic restraining order is terminated and vacated.

The automatic restraining order, which is codified as Massachusetts Supplemental Probate and Family Court Rule 411, provides for certain restrictions to parties in a divorce. It states the following:

“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.

Selling your stocks? Giving your children some of your antique jewelry? Hiding your ownership in a partnership or business? All of these could be considered by the Court to fall under the protections of the automatic restraining order, and engaging in these acts despite the order may expose you to sanctions by the Court.

Additionally, Rule 411 prohibits either party from incurring any further debts that would burden the credit of the other party—this includes things like unreasonably using credit cards or bank lines, as well as borrowing against a credit line or the marital residence. Rule 411 also prohibits the spouses from changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, as well as from causing the other party or the minor children of the marriage to be removed from the coverage.

The goal of an automatic restraining order is to ensure that the parties’ do not make any drastic changes during the divorce proceedings. If one party would do something to give themselves an unfair advantage in the proceedings, or on the other hand, unfairly place the other party at a grave disadvantage, this could greatly impact the outcome of a case.

A question you may have is: what happens if you or your ex-spouse violates the automatic restraining order? Is there a way to make the non-compliant party comply? Are there any repercussions for violating the order?

If either party violates the automatic restraining order provision of Probate Court’s Rule 411, the other party can either file a formal complaint for contempt with the Court. A complaint for contempt arises when a party does not agree with a court order. It is a judge’s decision as to whether or not the party has violated the automatic restraining order. If so, the party will be held in contempt of court, and the judge will impose sanctions based on the severity of the violation. Sanctions are court-ordered penalties for disobeying a law or rule—in this case, they may range from fines to unfavorable rulings on certain motions.

If you need assistance with an automatic restraining order or have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Ex Parte Protective Order: New Massachusetts Case Law

The recent case of C.R.S. v. J.M.S. addressed the issue of ex parte abuse protection orders. In that case, the victim of domestic violence filed a complaint for a restraining order against her partner. Her story entailed many instances of controlling behavior, along with some instances of physical violence.

As we explained in previous blog posts, one particular recourse for victims of domestic violence is to seek a protective order in court under Massachusetts General Laws chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse, which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.

In addition, under Chapter 258E of the Massachusetts General Laws, any party may seek a protective order against another party based on harassment. Unlike a temporary order of protection from abuse, it is not necessary that domestic violence or abuse be in the picture.

In the case at hand, the District Court issued an emergency protective order for the plaintiff. The order was issued ex parte, meaning without the presence of the defendant. The injunction ordered the defendant to stay away from the plaintiff, not to contact her, and to vacate the plaintiff’s home.

Two days later, following the defendant’s arraignment for a criminal charge related to the domestic incident, another hearing was held by a different judge. Both the plaintiff and the defendant testified at the second hearing, and the defendant was represented by an attorney. The plaintiff described the abuse she endured from the defendant, including her recount of being pushed into a wall and pushed down on multiple occasions. The defendant denied the plaintiff’s allegations. After questioning the defendant, at the end of the hearing, the judge extended the order of abuse protection for one year.

The defendant appealed the injunction, claiming that the protective order should not have been extended, because his actions did not constitute “abuse” as defined by Massachusetts law. He also claimed that the plaintiff’s categorization of his actions as abusive was incorrect, and that the plaintiff’s claims of fear due to the defendant’s actions were “unreasonable.”

The Appeals Court held that there was no error in issuing the injunction. The trial judge did not err and could reasonably concur, based on circumstantial evidence, that the plaintiff has met her burden of proof.

“We are satisfied that the judge properly found that the plaintiff met her burden here,” the Court noted. “She testified to at least two separate incidents of physical assault (with one incident occurring at the time the ex parte order issued) in the course of a deteriorating and stressful relationship — a relationship that she testified had been characterized by the defendant’s controlling behavior as well as verbal and emotional abuse. At the time of the hearing, it appeared that the relationship was ending and the defendant was drinking heavily.”

The defendant also argued that the original ex parte order was wrongfully issued, claiming that he was entitled to an opportunity to appeal that order. The Appeals Court disagreed. “Simply put, a defendant is entitled to be heard on the issue of whether an order pursuant to G. L. c. 209A should have issued, and a defendant has the right to appeal the issuance of an order against him or her. However, a defendant is not entitled to relitigate each stage of the proceedings,” the Court held. “Here, the defendant was given notice of the extension hearing, which was held two days after the ex parte order issued and, represented by counsel, he was given an opportunity to oppose the extension of the ex parte order. He is not entitled to further review of the ex parte order in this court.”

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

Social Media Posts During Divorce

Most people have at least one social media account, seeing that there are various forms of social media on several platforms–Facebook, Instagram, Snapchat, and Linkedin, among others. People facing a divorce often ask: does the use of social media have an impact on a divorce proceeding? As a simply answer, it might. In fact, with the click of a mouse, you could sabotage your divorce or child custody action.

Suppose that Jack and Jill are getting divorced. Jack and his new girlfriend go to Europe. Jack’s girlfriend has family in Europe, and her family paid for their flights. While there, Jack and his girlfriend explore several prominent destination spots. Jack’s girlfriend posts pictures of their trip to her social media account. Jack’s girlfriend is a professional photographer and manages to capture shots of their food and surroundings to make their location and lifestyle seem glamorous. Unfortunately, Jack’s girlfriend tags Jack in these photos on Facebook, so that the photos appear on his page too.

On the surface, it would appear that Jack has money for an expensive vacation – what the photos do not reveal is that Jack spent no more than $400 on the entire trip. The photos do not reveal Jack working remotely during his trip, although he does work during his trip because he cannot afford to be away from work. Although Jack’s Facebook is private or mostly private, Jack’s social media friends are social media friends with social media friends of Jill’s. Ultimately, Jill sees these photos. When Jack requests alimony from his ex-spouse Jill, Jack’s request is denied because the judge sees that Jack has the means to travel to Europe and dine at French restaurants.

Email and text messages are admissible in court, and Massachusetts courts may use evidence from social media accounts against a party in a divorce action. One rule to consider in a divorce: if you would not want all parties and the judge to see your posts, then the post should not be uploaded. As such, it is important to change your settings to not allow someone else to tag you in photos or upload evidence to your Facebook “wall” without your permission.

Another consideration deals with employment and income, which may come up in regards to issues of alimony, support, or property assignment. For example, Linkedin is a social media platform that may show that your ex-spouse has another job, which may mean that your ex-spouse has more income than originally realized.

Yet another way that social media can play a role in family law deals with its impact on custody considerations. Imagine that you are a parent fighting for your child’s custody. What would happen if a judge saw images of you drinking with friends at the time when you were presumed to have been watching your children? This information could damage your custody case. Even if you weren’t drinking, but were with people who were drinking – the appearance of your lifestyle could affect how you are perceived in court.

What if you and your spouse agreed to raise your child on a “healthy” diet, but you’re posting pictures of your child eating cookies and junk food? Imagine that your child was unruly and took his coat off during the winter, and you posted a picture of your child without a coat on in the snow? Does this show poor parenting?

There are countless situations and photographs that could be spun in the favor of your ex-spouse. As such, it is important to note that even if you are a wonderful parent or even if you are accurate in your financial reporting, a judge could make a decision that is not in your favor. After all, the judge is a human and appearances matter.

If you have a social media account, you should not delete it once your divorce litigation begins. However, it is important to refrain from using your accounts because your words and posts may be used against you in your divorce action or child custody case. You also should not use dating sites or applications until your divorce is finalized.

Many people believe that if an account is private or if the settings are adjusted, then no one can see their posts. This is untrue. Many social media platforms change their digital privacy settings often, which could lead to the revealing of your “personal” photographs or posts. In addition, in this connected world in which people live, there are often very few degrees of separation between people. You may have a friend who has a friend who reveals your personal information to your ex-spouse.

If you are seeking a competent divorce lawyer or family law attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission with prompt attention.

Suitable Residence as a Custody Consideration

Kelly and Ken are divorced and share custody of their three minor children. Kelly maintains a modest, but clean and safe home in a small town, while Ken lives in a one-bedroom apartment. Ken’s building is pretty run-down, and it is located in an area of a large city known for its high crime rates. Kelly is concerned that Ken cannot provide a suitable residence to the parties’ children when they visit with him. First, she is concerned about the children’s safety in Ken’s neighborhood and building; second, she is concerned that the lack of an extra bedroom means the children’s sleeping arrangements are less than ideal. Kelly wishes to petition the court for sole physical custody of the children.

Custody Factors

When addressing issues of custody, the Probate and Family Court judge will look at various factors to determine which parent would be most suitable to have primary physical or legal custody of a child. Making these decisions based on the “best interests of the child standard,” the factors considered are the fitness of the parent, children’s preference, and home environment, among others. In these cases, even if your ex-spouse says your home is unfit, it is ultimately up to a judge to determine what is best for the child.

Suitable Residence Factor

When considering the suitable residence factor in determining child custody, the court may consider whether the living conditions would affect a child’s physical, mental and emotional health. For example, in Ventrice v. Ventrice, the Court reversed a custody award because the judge did not consider the children’s living situation. In that case, the ex-wife’s negligent attitude towards her home environment and safety forced the judge to reverse the initial award. The Court found that the ex-wife’s home was “dirty and unkempt” and she failed to barricade an 80 foot cliff near her home, all things that were not in the best interest of her children.

Additionally, the Massachusetts courts have held that a residence where a child would be taken care of by many different adults would not be in the best interest of the child. In Hunter v. Rose, the Court awarded custody to the parent with a stable job and flexible work hours, rather than to parent who had lived in four different residences in less than one year, with no nearby relatives and five different care providers for daughter. The court believed that this living arrangement would put the child in unfamiliar environment with new caregivers and medical providers while the parent was unavailable, thereby putting in question whether it was a suitable residence. Also, the Court has determined that if the child were to be placed in a stable home environment or in a clean home, this would have a positive effect on a parent’s hopes for physical custody.

On the other side of the coin, the Courts have also held that simply giving a child a high standard of living does not mean custody should be awarded to the parent whose lifestyle allows for a higher standard. For example, in one case, Bak v. Bak, the Court held that stating that material advantage and successful child-rearing do not necessarily go hand in hand. To base custody determination on material advantage would likely punish the less affluent party, the Court stated. In other words, even if your home is nicer than your spouse’s, this in and of itself is not a reason to award custody for you.

However, it is important that the income and resources of a parent are sufficient to provide a proper standard of living and suitable residence for the child. In the hypothetical scenario above, the Court will consider whether it is in the best interests of the children to stay with Ken, in light of the lack of space, safety considerations, and other potential issues with the standard of living that Ken may offer. Of course, the living arrangements will be only one of many different factors that the Court will consider in determining which party should have custody, ultimately basing its decision on what is in the best interests of the child.

If you need more information about issues of child custody 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.

What is Rehabilitative Alimony, and How Does It Work?

Family dynamics are complex. The members of a family unit must work hard to support their family system. In some family units, one spouse may work while the other stays home. Other families include two spouses who work. The diversity of the family unit applies to Massachusetts same-sex relationships as well.

One example of an issue in Massachusetts family and divorce law cases is how rehabilitative alimony is awarded and the method by which it works.

Take the following example: Leila and Les started dating fifteen years ago. Les worked full-time as a bank teller, and Leila had recently earned a college degree in computer information systems and started a career in her field at a local company. Over the years during their relationship, Les graduated from college and graduate school. During this time, Leila supported Les’s professional endeavors. She cared for all household responsibilities, including tasks such as cleaning, cooking, and raising the couple’s children after they were born. Recently, Leila and Les were married, but sadly they decided to divorce.

Because of the years of sustaining the family unit at home, Leila even as a girlfriend, did not build a career for herself. She now believes that she would not be able to obtain a career unless she pursued another college degree. Her computer degree is outdated, and she does not have as much experience as others in her field. Assuming that their divorce proceeds forward, how would the Massachusetts courts award alimony to the wife? Is the court able to award alimony for a short length of time?

In Massachusetts, the Probate and Family Court may award rehabilitative alimony. As one of four forms of alimony, rehabilitative alimony is a form of financial support for a short period of time. Rehabilitative alimony allows the spouse who receives the alimony to reestablish herself until she is self-sufficient and self-sustaining. Until the receiving spouse is self-supporting and more independent, the paying spouse may be required to make payments to the receiving spouse.

To refer to the example above, Leila may want to obtain a modern computer degree or take additional classes to update her skill set. A Massachusetts court may award her alimony for the length of time required to complete her degree plus several more months, so that she may obtain a career position. The judge may award an equitable amount that is subject to the judge’s discretion.

Suppose that the husband in the aforementioned example remarries. Would he be able to terminate the payments to his former wife? The answer is no. However, if the wife remarries, the wife would not be able to continue to receive alimony payments.

One question often asked by many couples, spouses, and clients is, how long may the rehabilitative alimony payments last? Alimony payments may be made for 5 years or less. The payments may also end if either party passes away.

This award may later be modified if needed, in the event of a material change in circumstances. Let’s say that the Massachusetts orders Les to make monthly payments to Leila in the amount of $2000. Two months later, Leila becomes a social media blogger superstar and earns one million dollars per year. May Les stop making payments to her without the court’s approval? The answer is no, but Les may petition the court to modify the alimony amount. Because Leila could be deemed to be self-sustaining based upon her income, the Massachusetts judge would likely alter the amount of the alimony payment.

Conversely, if the wife was unable to become self-sufficient during the period of her alimony, the wife may ask the court to extend her alimony by arguing that her circumstances are compelling enough to warrant an extension of alimony.

In addition to awarding rehabilitative alimony, Massachusetts courts may award three other forms of alimony: (1) General Term Alimony; (2) Reimbursement Alimony; and (3) Transitional Alimony.

It is important to hire a competent family law lawyer to handle your unique case. If you have any questions about 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.

Full Disclosure of Assets is Needed for Prenuptial Agreements

Peter and Petra are getting married. Peter has considerable assets, including several homes, vacation homes, and checking and savings accounts. He also owns a string of rental properties from which he receives income. He deposits the rental income into an account which is not under his name, but rather the name of a trust he created. Petra, conversely, does not have much by way of assets, save for a modest savings account.

Peter and Petra have agreed to draft and sign a prenuptial agreement. Their respective attorneys have informed them that they would need to fully disclose their assets to the other party—in other words, they would need to inform each other about anything and everything of value they own. Peter has asked his attorney whether he needs to tell Petra about the rental income. After all, it is held in trust; what if Peter chose not to disclose it?

Prenuptial Agreements, Generally

An antenuptial agreement, also called a prenuptial agreement, is a written contract between two people who are about to be married. It serves to set out the terms regarding the division of property in the event of a divorce, along with any provisions for alimony.

Generally, in order for a prenuptial agreement to be considered valid and enforceable in Massachusetts, the agreement must meet the following elements:

  • it must be in writing;
  • signed by the parties;
  • signed voluntarily and under no signs of duress or fraud;
  • made after full disclosure of the parties’ assets;
  • the agreement must be fair and reasonable, and enforcement must not be against countervailing equities;
  • the parties must have adequate opportunity to consult with independent counsel;
  • the parties must understand and clearly indicate the rights which they are contracting away; and
  • the parties must not relieve themselves of their legal obligations during the marriage through the agreement.

 

Full Disclosure of Assets

In the above scenario between Peter and Petra, the element of full disclosure is at issue. To ensure that the process of signing the antenuptial agreement is fair and equitable to both parties, the court requires a full financial disclosure of the parties’ assets. In essence, the parties will be viewed to have a confidential relationship which brings with it the duty to disclose, mutually attributed to each party.

Lack of full disclosure may result in the parties’ agreement being invalidated. In some cases, lack of disclosure amounts to a form of fraud, particularly where there is a demonstrable inequity between the parties’ assets. Looking at the above example, this is the case, as Peter clearly possesses more assets than Petra.

In one case, the Massachusetts appeals court invalidated a prenuptial agreement after finding a lack of full disclosure on the husband’s part. Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). In that case, the husband kept the wife in the dark regarding his financial assets. He also claimed during the divorce proceedings that his primary asset, his real estate company, was a partnership. He claimed that his parents owned a one-half interest in the company. Moreover, the husband then attempted to make a fifty-percent, retroactive distribution of the real estate company’s assets to his parents during the divorce proceedings.

Financial Disclosure Schedules

In order to avoid any potential questions down the line, full disclosure should take place in writing. Each party should, for best practices, draft a financial disclosure schedule, which will be attached to the prenuptial agreement as an addendum. This schedule should clearly delineate and disclose all of the party’s assets to the other party. It should include:

  • a listing of the party’s assets, along with the value of each asset;
  • any outstanding liabilities of the party;
  • the sources and amounts of the party’s income;
  • any interests in businesses, partnerships, etc.; and
  • any expectations of inheritances or other potential assets.

Moreover, the agreement should include a section which makes it clear that both parties have read each other’s financial disclosure schedules, understand it, have acknowledged reading it, and have had the opportunity to consult with an attorney regarding it.

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

 

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.