WHAT TO DO IF YOU ARE STOPPED BY POLICE FOR ALLEGEDLY OPERATING UNDER THE INFLUENCE OF ALCOHOL When you are a motorist being stopped by a police officer it is common to be nervous and anxious and it is also common to want to cooperate with the officer’s instructions so that the unpleasant experience will…
Once a divorce is finalized, the documents are filed with the courts. However, life is unpredictable and circumstances can change over time. In Massachusetts, if an earlier court order or judgment no longer suits the parties because circumstances have changed in a significant way since the order or judgment was issued, the court can “modify” the prior order or judgment.
Cases where a modification to your divorce agreement might be appropriate include those where the children are significantly older than at the time when the last child support order was issued, or where a person ordered to pay alimony has retired and now has a substantially smaller income than at the time he or she was ordered to pay alimony.
Massachusetts was a leader in its early recognition of same-sex marriages. Logic dictates that the Commonwealth will also have more experience with same-sex divorce and family law matters, including child custody and support issues in cases involving the dissolution of a same-sex marriage. Three Massachusetts cases do, in fact, reflect that experience.
In a 2006 same-sex divorce case (A.H. v M.P., 447 Mass. 828), one partner never adopted the child of her partner, although she was well aware of the importance of pursuing a formal adoption. Her former partner was the child’s primary caregiver. The court determined that she had no legal right to parenting time and had no support obligations as a “de facto” parent. The result in this case indicates how critical it is for one partner in a same-sex marriage to adopt the other partner’s biological child if the first partner desires to continue to have a parental relationship with that child in the event of a dissolution of a marriage.
Before you meet with an attorney to discuss your child custody situation, here are few pieces of information about child custody in Massachusetts that you’ll need to know in order to develop questions pertaining to your circumstances.
Two primary forms of child custody in Massachusetts
Physical custody determines where a child will live during certain periods of time.
Legal custody determines which parent has authority to make major decisions as in the doctor the child sees, the school the child attends, and even in which faith to raise the child.
Sole vs. shared custody
Sole physical custody means a child lives with one parent who is ultimately responsible for the child’s day-to-day supervision. The other parent is allowed reasonable visitation unless the court rules that this would not be in the child’s best interest.
Shared physical custody allows both parents a shared responsibility in raising the child while the child resides equally with both.
Sole legal custody gives one parent all rights and responsibilities to make major decisions in the child’s life.
It seems like everyone knows a story about false allegations during child custody and divorce. One spouse points the finger at the other and receives a restraining order from the court. The wife or husband recognizes that doing this will, almost by default, give them custody of the children and exclusive use of the family home. The accused parent then must defend themselves in court and prove these allegations false.
While false accusations are a legal mess, it is also terrible to have someone with whom you once shared a life make claims of either abuse or neglect. It is something no one is ever really prepared for. You may feel you should reach out to your soon to be ex-spouse, but this can actually make things worse for you. Additionally, trying to make contact could be used against you. It is not unheard of for there to be accusations of stalking, harassment, or violence when all you want to do is smooth things over. No matter how tempted, it is best to keep away, and, with a clear mind, take more appropriate actions.
1. Gather Evidence – If there is an accusation, reported against you, collect evidence that will prove differently. You need names, places, and dates that will show the charges are false. If your ex-spouse claims you physically threatened her/him, but you have a receipt proving you were eating at a restaurant, that would disprove those assertions.
Most people enter the divorce process believing their soon to be ex-spouse is honest. However, this is not always the situation. The fact is dishonesty is a common reason for seeking a divorce. Even if you have no reason to suspect your spouse is hiding assets and misrepresenting their finances, it is prudent to vet their finances thoroughly.
Many people will do whatever it takes to conceal and hold on to what they believe is their money. Moreover, some will even create secret accounts, or perform other financial actions to conceal assets during the course of a marriage. It is possible to discover hidden assets in a divorce to ensure you receive a fair settlement.
The good news is an experienced divorce attorney has many tools at their disposal to discover hidden assets including but not limited to interrogatories, Requests for Production of Documents, Depositions, accountants, forensic accountants, private investigators etc.
In today’s world, many couples have very complicated financial portfolios that may include retirement plans, stocks, vacation properties, and more. Hiding places for assets are often predictable. These are some of the more common:
If you and your spouse are thinking it is time for a separation, there are some factors you should consider in order to make sure this is not only the right step for your family but also done in accordance with the law. Before any decisions are made, it would be beneficial to consult with…
If you are the non-custodial parent, not being able to spend time with your child on a daily basis can be painful. Regular visitation should help but if the other parent is not cooperative or if you have not been granted visitation, you could be wondering what steps you need to take in order to…
Divorce is always a painful process. Splitting assets for its cash value is often a difficult end to a relationship that did not work out. Emotions run high, even in an amicable divorce. Being prepared is the best way to ensure both parties receive their fair share of the marital assets and debts. Listing shared properties of value, dividing properties with written evaluations by a neutral party and listing all goals for your divorce are important to avoid costly mistakes and a satisfactory outcome.
List All Items of Value
Every couple has items of value. A family home is a piece of real property. Vehicles, jewelry, family heirlooms and furniture may all have monetary value. Family businesses or savings and retirement accounts are part of the marital assets as well. Credit card or loan debt is part of the equation too. These items are all part of the marital estate. Having a list of all valued property makes division easier and ensures both parties receive their fair share.
Splitting the Business Down the Middle
There are some businesses where splitting a company is relatively easy, and each person has their own territory. Mediation helps to decide which partner gets a particular territory, and this is usually done when both people enter an agreement willingly. Each partner retains their own share of business, and they negotiate physical territories so they do not steal each other’s customers. This is acceptable under Massachusetts law, and most judges deem it as a reasonable distribution of a family business.
When you’re going through the divorce process and managing the child support and custody issues, you’ll hear the term “best interests of the child.” Generally, the court will consider the new family lifestyle after a divorce and where the court feels the child will best be able to adapt to the new changes. It is possible for you and your spouse to ease into your new family dynamic in order to make the transition easier on your child.
In order for you and your spouse to best help your child through the divorce process, you should maintain an amicable relationship. While that may not be easy, especially at first, this is beneficial in helping your child’s transition into this new way of life. It’s best to avoid contentious debates about visitation, child support, visitation and other child-rearing issues.
Having the provisions of a judgment of divorce or modification modified under Massachusetts law is possible, based on the language of the Judgment and the circumstances bringing about the request for a modification. Before bringing your modification complaint to the court, you need to consult with an experienced divorce attorney.
The first thing to realize is that there must be a material change in circumstances to request a modification, such as an employment change, a significant change of residence, or change in income. These changes can affect custody agreements and spousal and child support.
When drafting a separation agreement, there are two types of provisions addressed in the judgment: surviving and merging. Merging provisions are open to modification. Merging provisions are generally child specific issues like custody arrangements, support, and health insurance. Sometimes alimony can be a merging provision. Surviving provisions are generally not open to modification. An example of a surviving provision is the division of property.
In Massachusetts, several factors are used to determine child custody between two parents seeking divorce or between unmarried couples who cannot come to custody terms following separation. Massachusetts law recognizes four different types of custody:
- Sole legal custody
- Shared legal custody
- Sole physical custody
- Shared physical custody
In the first and third statuses, only one parent has the right and responsibility regarding the child’s welfare, including education, medical care, and emotional, moral and religious development. Shared custody allows both parents to make decisions. Physical custody status goes one step further by determining whether children will live with only one or spend time living with both parents in addition to determining who will be responsible for their welfare.
Many couples start out in marriage with great hopes and expectations, only to end up in a relationship that unfortunately does not work. There are many steps in the divorce process in Massachusetts and just as many avenues to take depending on your situation. Here is a brief introduction to filing for divorce in Massachusetts…
Many people who receive a driving under the influence (DUI) or operating under the influence (OUI) charge, as it is known in Massachusetts, assume that the offense is relatively simple and thus believe they should represent themselves when the case comes to court. Each individual is entitled to do so. However, below are several facts to consider before making a decision.
Certain attorneys specialize in drunk driving defense. They understand the intricacies of the law and the administration of the court. Although you may have read up on issues such as blood alcohol content (BAC) levels and other requirements of the law, presenting your case in court is quite different and only an experienced OUI defense attorney is capable of effectively navigating the process and identifying defense opportunities.
In the event of a divorce, one parent may be ordered by the court to pay child support. Under Massachusetts law, both parents are required to support their children—and this is true regardless of marital status (whether the parents are married, divorced, separated, or were never married). The parent the child lives with is termed the custodial parent. The noncustodial parent may be required to pay child support.
Child support is complicated, but there are several things you should know.
One, child support may be used to pay for housing, food, clothing, education, and insurance and medical costs.
Two, if one parent has received an order for child support and the other parent is not paying it, payment can be compelled. The procedure is to file a Complaint for Contempt with the court. This means that, if the other parent does not obey the child support order, he or she can be held in contempt and is subject to penalties.
Making the decision to separate from your spouse is difficult and often occurs over a lengthy period of time. During that time, it’s common for spouses to begin living in separate households. If the partners have children, this raises many questions about where and with who the children should live.
Massachusetts law has put in place some very distinct laws to handle this sort of child custody dispute. If the parents are not married, the mother automatically has sole legal and physical custody until a court orders something else. However under Massachusetts law, if the parents are married to each other, both parents share legal and physical custody of the children until a court decides otherwise.
When the terms of your divorce no longer fit your present circumstances, petitioning for divorce modification can help alter the terms accordingly. In the state of Massachusetts, overturning a divorce decree requires an appeal. This process is often drawn-out because one appellate court will need to overturn a lower court’s decision. These appeals are usually unsuccessful except in the case of exceptional and compelling circumstances. These are common examples of situations that warrant a divorce modification.
1. Moving a long distances from an ex-spouse.
2. A needed increase of alimony. Spousal support is not mandatory in the state of Massachusetts. It depends upon the income and situation of the spouses.
3. Dramatic increase or decrease of income for former spouse under a child support order.
4. A child is not being properly supervised by parent or current partner of parent due to psychological or substance abuse problems.
5. A teenage dependent becomes difficult to manage and increased custodial or financial assistance is required to address the issue.
6. Division of property is found to have been unfairly divided due to new information that was not previously known.
Posted by Michael Franklin
Massachusetts family law covers the divorce process, which begins when one of the spouses actually files a legal petition, or “complaint,” which advises the court he, or she, wishes to end the marriage, and this petition is “served” on the other spouse.
Legal requirements for divorce in Massachusetts (MA) can be found in Massachusetts General Laws, Chapter 208, sections 1-5 and 21, and include “residency requirements,” such as:
- “Spouses must have lived together in MA as husband and wife,”
- The plaintiff (the person petitioning) “must have lived in MA at least one year,
- The actions/inactions that have brought about this divorce action must have occurred in MA, and
- If the causal actions/inactions happened in another state, the spouses must have “lived together in MA,” and at least one spouse has to be an MA resident.
Massachusetts courts also requires a “ninety-day waiting period” after filing, and before the divorce action can go forward.
Posted by Michael Franklin
Deciding to end a marriage is a difficult and stressful decision. But, the decision is only the first step in ending a marriage. Once you have decided that divorce is best for you and your spouse, the next step is finding an attorney. A law firm well-versed in Massachusetts law pertaining to divorce can help make the dissolution of your marriage as painless and smooth as possible.
When you begin looking for representation, it is important that you understand exactly what your needs are to choose an attorney best-suited for your situation. Below are a few basic things you should look for in a divorce attorney.
Posted by Michael Franklin –
Limited Assistance Representation allows an attorney to assist a self-represented client with specific issues on a limited basis. This might include preparing or reviewing documents, appearing in court or giving legal advice, hence the term unbundled services. This type of limited representation, compensated or pro bono, permits the attorney to withdraw representation after completing agreed upon services.
Although the attorney does not fully participate, the attorney owes the client the same duties of loyalty, competence and confidentiality for the limited representation as he would under full service representation. The attorney also must review the limitations of the legal assistance with the client, for example in a written description.
Posted by Michael Franklin –
Separation agreements allow you to outline specifically in a divorce what you agree to. Specifically, separation agreements resolve issues such as custody, child support, parenting time, alimony, medical and dental insurance, property and debt division, taxes, and name changes. What you put in the agreement is specific to the situation and the concerns you may have.
A separation agreement functions as a contract when you and the other party sign it. However, Its terms become binding when it is approved by a judge. If a judge thinks it is unfair or a signature was coerced, they have the discretion not to approve it.
Posted by Michael Franklin –
Massachusetts law allows step-parents to adopt their spouse’s child under certain circumstances through an independent adoption. The first step in the adoption process is to file a petition in probate court. If the non-custodial biological parent consents then the court will simply finalize the adoption if the step-parent is eligible to adopt. Ineligible step-parents include those who have not lived in the state for more than six months.
If the other parent contests the petition, then asking the court to terminate the parental rights of the other biological parent is the next step. Termination of parental rights is allowable if the absent parent deserts the child or is deemed incompetent. Evidence of either of these facts must be presented to the court.
Posted by Michael Franklin –
Divorce can be a stressful time. When children are involved, the experience can be even harder. Figuring out where the child or children will live often transitions into disagreements and arguments, particularly if both parents want sole custody of the children or if one parent feels like he or she is not getting fair visitation rights.
Massachusetts law concerning child custody and visitation is pretty clear-cut. First of all, if the parents were married, unless a judge has said otherwise, both parents temporarily share custody of the child until a permanent decision is made by the court. If the parents are unmarried, the mother has sole custody of the child unless a judge says otherwise. Permanent custody of the child can be broken up into four types of custody.
Sole legal custody– One parent has the right to make decisions about major issues such as where the child goes to school, what religious instructions the child receives, and when and how the child gets medical care.
Shared legal custody– Both parents are equally responsible to make decisions regarding things such as the above mentioned major issues in the child’s life.
Sole physical custody– The child lives with one parent although the other parent will have visitation unless the court determines visitation with that parent is not in the child’s best interest.
Shared physical custody– The child will live with both parents at different times. Although the child might not split time with parents 50/50, physical custody will be shared in such a way as to allow the child to have regular continued contact with both parents.
Posted by Michael Franklin –
Harassment online is becoming increasingly common, however many people don’t realize there are laws to protect victims and prosecute the offenders. Massachusetts General Law states that anyone who conducts continuing malicious behavior specific to another person that results in substantial emotional distress and alarm is guilty of criminal harassment. This includes internet communications and is punishable by imprisonment not to exceed 2 ½ years and/or a fine of $1000 (punishment increases on 2nd offense).
Recently, the Massachusetts Supreme Judicial Court upheld a lower court ruling that found a couple guilty of harassing their neighbors using internet posts and other methods. They had been found guilty under Massachusetts law, statute G.L. c. 265, 43A (a). The court concluded that the sole reason for the offenders’ speech was to harass the victims and therefore, the speech is not shielded by the First Amendment.
Posted by Michael Franklin Divorce agreements cover many details, including child custody, child support, property division, health insurance and many other specifics based on the details of a family’s life. The difficulty is that at the time a divorce agreement is ruled upon and issued, it’s impossible to foresee all future circumstances. Therefore, it’s often…
Posted by Michael Franklin
Have you been suddenly charged with contempt in Massachusetts for not paying your child support that was ordered by the court after you and your spouse divorced? Perhaps it’s in reverse and you’re filing for contempt against your spouse for not doing what was required with a court order. Either way, it’s a contentious form of family law that you never want to go through if you can amicably work it out. But in both scenarios, you have to work with a Massachusetts family law attorney to go through the proper steps to assure the contempt charge gets ironed out in the best possible way.
If you’re the one receiving a contempt charge from your spouse for reneging on a court order in child support payments, you’re going to need to respond to the summons immediately. The summons is basically a question of why you haven’t obeyed the previous court order on child support payments. You have to send that summons back with a logical answer before the required deadline.
Posted by Michael Franklin
Divorce is rarely easy, and even less so when it comes to custody and visitation arrangements for children. In Massachusetts, the top priority of the courts is to determine arrangements that are “in the best interests of the child”, but that may not always be as straightforward as it seems. This is not the time to try and do it yourself. Instead, seek competent legal representation and hire an attorney.
Massachusetts recognizes shared legal custody, sole legal custody, shared physical custody and sole physical custody. When a couple files for divorce, both parents are automatically granted temporary shared legal custody. This allows both parents to have equal responsibility (and rights) concerning major decisions like medical care, education and religious development. During what can be contentious times, differing ideas about the schooling or religious upbringing of children can surface. Having an attorney can make sure that these discussions and decisions remain on track and comply with the law.
In cases of where temporary shared legal custody may not be best for the child, like in cases of abuse or neglect, the court has to consider “all relevant facts”. Lawyers can advocate for the child by presenting legal proof of past instances or patterns of abuse.
When it comes to visitation, most parents will need to establish a schedule. This is in everyone’s best interests as it can clearly define where the child will be on which days and which times. It often also details who is responsible for transportation to and from visitation events. Here too, a lawyer can help ensure the schedule is fair and expectations are reasonable for both parties.
Posted by Michael Franklin
In the era of ubiquitous personal technology, it may seem that we have an unbridled right to use our smartphones to photograph or record anything and everything. We may particularly want to record the police to verify that they are serving and protecting the public and not violating individual rights. Be careful, even here in our great state of Massachusetts, the police can still lawfully charge and arrest you for recording them in certain circumstances.
Recently, a woman was charged with unlawful wiretapping by the Springfield police for recording her arrest. The Springfield Republican reported that a 24 year-old woman, Karen Dziewit, was arrested for disorderly conduct and the police discovered in her possessions a smartphone with the audio recorder activated. When she was arrested, the police claim that Ms. Dziewit had yelled that she was recording the entire incident. Subsequently, the police further charged her with violating the Massachusetts law prohibiting wiretapping. In Massachusetts, it is a misdemeanor punishable by up to two years in jail and/or a maximum $5000 fine to record any conversation without the consent of all parties. Mass. Ann. Laws ch. 272 § 99.
Posted by Michael Franklin
Are you aware of Massachusetts “social hosting” laws? Social hosting refers to providing alcohol or other illegal substances to a minor that is not your own child on your property or in an environment you control. Especially during graduation time, some parents reason if they provide alcohol at a party at their private residence in a safe environment, ensuring that minors do not drink and drive, they are not committing a crime. Massachusetts’ “Social Host” law says that they are. Consider the consequences and situations covered by this law.
In the state of Massachusetts, domestic violence laws are designed to protect the following:
- people who are or have once been married
- individuals that have children together
- individuals that are related through marriage or by blood
- individuals who live together are have lived together, such as roommates
The elements of the crime of Assault requires the intent to commit physical harm against another individual and placing one in fear of injury or physical harm. Physical harm is not required. This means that a credible threat to commit physical harm can be considered an Assault.
The elements for the crime ofStalking also requirethe intent to cause physical harm or to inflict fear of physical harmin a household member. Repeatedly calling, emailing, or attempting to contact an individual after it was made clear they don’t want contact can be considered stalking. Stalking can cause injury if the victim has experienced severe emotional distress due to threats or the repeated attempts to make contact.
The issue of bullying has become a hot topic all over the U.S in recent years. Tragic events such as victim suicides and violent assaults have turned the spotlight on the debate of exactly when and how bullying becomes a criminal act. At the forefront of this debate is the increasing trend of cyber bullying where often the bullies anonymously attack their victims online through fake profiles and social media accounts.
What is Cyber Bullying?
The Attorney General of the State of Massachusetts classifies Cyber Bullying as “electronically communicated threats and willful and malicious directing electronic communications at a specific person that seriously alarm that person and would cause a reasonable person to suffer emotional distress.”
Children and Adults may be Charged with Cyber Bullying
Many feel that the problem with cyber bullying is that it does not end at the toll of the school bell or end of the work day. It continues every time the victim uses their smartphone, handheld device, or computer. This is why cyber bullying is considered an extreme form of harassment. The Massachusetts legislature has made laws regarding cyber bullying sweepingly severe, this means children to adults can be charged, convicted, and penalized for Cyber bullying crimes.
By Michael Franklin
Massachusetts Field Sobriety Tests are used by law enforcement officers to determine whether someone may be driving under the influence of alcohol or drugs.
There are several tests that may be administered however three tests are commonly used:
1. Horizontal Gaze Nystagmus (HGN). The officer will ask the suspect to follow an object with his eyes. As the object is moved further to the side of the person, a jerking of the eyes called HGN will occur. HGN is more prominent in impaired persons.
2. The walk and turn requires the suspect to walk a number of steps instructed by the officer, touching their heel to toe with each step. Impaired persons may do the wrong number of steps or may not be able to touch heel to toe.
3. The one leg stand. An impaired person may not be able to keep their hands at their sides and may wobble more.
By Michael Franklin
In Massachusetts, anyone who is no longer happy in their marriage can get a divorce for just about any reason. However, there are some cases where the marriage should not be legally recognized in the first place. In these situations, an annulment may be the best option. Understanding the annulment process in Massachusetts can help determine if this is an option for you to consider.
In general terms, couples qualify for an annulment in Massachusetts based on social or religious reasons. Some of the most common reasons for granting an annulment over a divorce include:
- Marrying a close relative.
- Impotence in one party.
- Mental incompetence.
- Presence of a hidden contagious disease.
- One party is already married.
- One party is underage and unable to consent.
As long as you can prove one of these situations, you may be granted an annulment. However, some of these situations have additional requirements, and consulting with an experienced family law attorney may be your best option. If your situation doesn’t fall into one of these primary categories, you may still consult with an attorney to find out if you qualify.
By Michael Franklin
If you’re in Massachusetts and dealing with the prospect of a spouse not paying their child support payment, you may have to go through Child Support Enforcement. This is a service available through the state and within the Massachusetts State Department of Revenue. When you contact CSE about a spouse not paying child support, you have a number of legal options available to make sure it’s paid. CSE can also help settle other issues with your children following a divorce.
The Complete Role of Child Support Enforcement
While you can always go through Family Court, CSE can take care of various issues related to your children without going to Court. If you happened to have dissolved a common law marriage, CSE can help determine the paternity of any child born in the interim. They can even help in determining medical support obligations for your children. Most of all, they’re there to help enforce these obligations as well as child support. They have significant legal authority when it comes to enforcing support obligations.
Divorce is a challenging time for both spouses. So many factors involving the outcome can have lasting effects. Alimony is no exception. Alimony refers to a specified amount of money paid to one spouse as support by the other spouse during and after divorce. The purpose is to help the lower-earning spouse maintain a reasonable standard of living. One of the most popular questions asked is, “can remarriage discontinue alimony?” A change in the Massachusetts alimony law in 2012 clarified that provision and several others. Consider these four frequently asked questions about alimony and remarriage in Massachusetts:
How Much is Alimony?
The main consideration in calculating alimony in Massachusetts is each spouse’s income or income generating capacity. However, many other factors are at play when a court determines how much alimony a spouse is required to pay. While the actual amount is usually a percentage of the paying spouse’s income, the following factors are also considered:
- The length of the marriage;
- The standard of living while married and the ability of both spouses to maintain that standard of living;
- The income, skills and employment opportunities of both spouses;
- The current liabilities and needs of each spouse;
- The age and health of each spouse.
What if the receiving spouse gets remarried?
Massachusetts changed the alimony law in 2012 to include a provision that reduces or terminates alimony if the receiving spouse is living with a new partner. However, don’t assume termination is automatic. Termination upon remarriage must be stated in the original judgment of divorce to automatically end. Otherwise, the court will decide. Additionally, if the new marriage ends, alimony can’t be reinstated unless that was specifically written in their divorce judgment.
For those looking to pursue divorce in the state of Massachusetts there are some requirements that must be taken into consideration. The legal process of divorce can be complicated. Therefore, it is in the best interest of each individual to consider hiring an attorney who focuses on divorce and family law, even if the divorce…
Massachusetts has enacted new child support guidelines as of August 1, 2013.
Child support is often ordered in custody cases to ensure the child is properly cared for by both parents. The two issues are considered separately, though. Whether you are the person who is supposed to pay support or you are owed the support, it is essential to understand how it works in Massachusetts.
Child support is typically determined based on a variety of factors that are unique to each set of parents. Some of these factors include:
- Rate of pay
- Child care paid
- Health and dental insurance paid
- Other prior support obligations
- Number of children
By Michael Franklin
As many business owners here in Massachusetts know, a marriage is not guaranteed to succeed. Some may last for decades before failing, others just a few years. But no matter how long the marriage existed, its demise can have a profound effect on a business – unless the business owner took steps ahead of time to minimize the impact a divorce would have on it.
One of the best ways to minimize the impact is with a prenuptial agreement. In most cases, Massachusetts’ law upholds the terms of a prenup – so agreeing ahead of time on how things will be handled should a divorce occur can prove invaluable in protecting a business and its assets. Even in states like Massachusetts which considers a variety of factors when deciding how to split a couple’s assets, a prenup can help protect a business that would not otherwise be protected. In order to ensure that the prenup won’t fold under pressure, it needs to be drawn up under the following conditions:
By Michael Franklin
One of the most common questions when going through a divorce is; how is spousal support determined? Spousal support also known as alimony can be difficult to understand. When you hear about divorces involving people who are rich and famous, alimony payments can be in the millions. However, what if you or your spouse don’t earn more than six figures? Does alimony still come into play? The answer is simply that it could. Alimony is based on the financial situation of each spouse.
In Massachusetts, alimony can be awarded to either spouse, and is gender neutral. The judge bases the decision on several factors such as –
- How long the marriage lasted
- The age and health of each spouse
- The income of each spouse
- Employability or employment of each spouse
- Any training required for one spouse to find employment
- The contribution of each spouse to the marriage
- The standard of living during the marriage
- The liabilities of each spouse
While there is no set formula for determining spousal support, there are laws in Massachusetts that require that spousal support not exceed the recipient’s need or up to 35% of the difference between the income earned by each spouse. Judges have much discretion in determining whether there is a need for spousal support and whether a party has an ability to pay it.
By Michael Franklin
A divorce can be extremely stressful both emotionally and financially. If you are going through a divorce knowing how the law applies to you may ease this stress. Here are important areas of divorce law for Massachusetts residents:
Mass. Gen Laws Chapter 208 Section 34 governs property division for a divorce. Property is divided based on the length of the marriage, the conduct of the parties during marriage, the age of the parties, the health of the parties, the station or lifestyle of the parties, the occupation of the parties, the vocational skills of the parties, the employability of the parties, the amount and sources of income of the parties, the estate of the parties, the liabilities of the parties, the needs of the parties, the opportunity of each party for the for the future acquisition of capital assets, the opportunity of each party for the future acquisition of income, the present and future needs of the dependent children of the marriage, the contribution of each of the parties in the acquisition, preservation and appreciation of the marital estate and the contribution of each party as a homemaker to the family unit.
There are two types of custody of children, legal and physical. When a Court awards legal custody of a child to a party it means that party shall have decision making power on issues regarding the child’s education, religion, as well as elective medical, dental and other types of treatment. If both parties are awarded joint legal custody, it means that both must assent to such decisions. If a party is awarded sole physical custody of a child then that party’s residence is the primary residence of the child and that party has the primary caretaking responsibilities for the child. Joint physical custody of a child means that both parties share the primary caretaking responsibilities for the child and the child’s residence is divided between the parties.
By Michael Franklin
The Massachusetts Alimony Reform Act was signed into law in 2011 and became effective a little over a year ago. This law brought about sweeping new changes in the way alimony is awarded in the state, and many orders issued prior to its enactment could be modified as a result.
One of the biggest changes brought about by this act was the length of time a spouse may receive alimony. In the past, alimony was sometimes awarded for an indefinite period even when marriages lasted less than 20 years. The current law requires couples to have been legally married for at least 20 years before alimony will be awarded indefinitely. Those who were married less than that amount of time may receive spousal support for a period of time ranging from 50% to 80% of the number of months married depending on the length of the union.
Alimony may be suspended under certain conditions including if the recipient later remarries. If he or she cohabitates with another for a period of time that exceeds three months, a judge may also order alimony be suspended. In most instances, payments will automatically cease when the spouse who is ordered to pay reaches full retirement age.
By Michael Franklin
Our children are an integral part of our lives and keeping them safe is what parenting is all about. Parenting together after divorce presents new challenges to an already difficult process, but navigating painful emotions to maintain a united front is an essential part of the job. The bottom line is, kids feel healthiest when their parents get along.
Breaking the News
Depending on age, discuss the process openly in your family. If possible, include both parents in the discussion. Emphasize that while the family is changing, it is not ending. Divorce means that a marriage is over, it does not mean that a parent’s relationship to his or her child is over. Your children should feel secure that both their parents love them and neither parent will leave their lives. Make sure they understand that the divorce is not their fault, that there is nothing that they can or should do to change things. Remember to answer their questions with as much care and honesty as possible. They will probably have quite a few questions, and answering them, repeatedly if necessary, will help them regain the sense of security that they’ve lost.
Dealing With Your Own Hurt
Painful feelings are a natural part of the divorce process. When co-parenting, however, those emotions must take a back seat. Remember to make the happiness and security of the children your shared priority. When feelings of pain and anger arise, take them into a separate space. Never let those leak out onto your children. Find a therapist or a close friend to lean on instead. Be aware of your body language as well. Make a conscious effort take deep breaths and relax your shoulders. If you’re feeling momentarily tense, smile. It’s remarkable how some emotions can work from the outside-in.
Facebook is playing a role in as many as a fifth of all divorces in the U.S., according to a study by the American Academy of Matrimonial Lawyers.
Facebook can come up in a divorce case in several ways. One is that marriages sometimes end because people have affairs with people they met – or re-connected with – over the social networking site.
One of the most common uses of Facebook is getting in touch with old friends. But if a marriage is in some trouble already, and a spouse gets back in touch with an old friend (or an old flame) who is emotionally available, a simple “hello” could turn into something much more complicated.
But Facebook can also come up in a divorce case because it can provide evidence of a spouse’s misconduct. For instance, because people put so much of their lives onto the site, it can be a rich source of evidence of adultery.
The ex-wife of an Air Force officer might not be able to share in an increase in the officer’s pension benefits that resulted from a promotion he received after the couple divorced, according to a New Jersey appeals court.
The couple divorced when the husband was a captain. The divorce settlement gave the wife 50 percent of his military pension, which was based on his 11 years of service to that point.
By the time the husband retired, he’d reached the rank of major. His promotion entitled him to a larger pension benefit.
A husband’s interest in a business partnership that produced a consistent stream of profits “counted” as marital property, and his wife can receive a share of his interest at divorce, the highest court in Massachusetts recently ruled.
The husband was a partner in an investment advisory firm. Under the terms of the partnership, he received annual cash payments in the form of salary, incentives, return on capital and merit pay.
The wife claimed a share of the value of his partnership interest. The husband objected, arguing that his partnership interest wasn’t “property” since he had no right to the annual payments, which were merely an “expectancy” of future income. (State law says that a divorcing spouse has no right to share in a mere “expectancy” of a benefit.)
A father’s child support obligations could be reduced by the amount of his Social Security Disability Insurance payments that went directly to his children, the Vermont Supreme Court recently decided.
The father had been ordered to pay $326 a month in child support when he and his wife divorced. Soon afterward, he went to prison for five years.
When he got out of prison, he applied for SSDI benefits. He received a retroactive payment that included more than $14,000 that went directly to his ex-wife on his children’s behalf.
The father argued that his child support obligations should be reduced by the amount of this payment to his children.
Generally, whatever assets and debts a couple accumulate during a marriage can be split between them at divorce.
But what if a husband racks up an enormous amount of credit card debt without his wife knowing about it? Should she still be responsible for half the bill?
In one recent case, the Kentucky Supreme Court said “no.”
The couple in that case divorced after being married for 42 years. Late in their marriage, the husband ran up $65,000 in credit card debt trying to help their adult son recover from financial setbacks.