Ex-wife is in contempt and denying me visitation.

Posted by Michael Franklin
Additional Information: My ex-wife is denying me my holiday visitation this year. I’m a MA resident, living in West Boylston.   Every other year I get the kids for their Christmas vacation.  This year is “my” year and she’s already saying she is making other plans with them which is a clear violation of our Divorce Decree.  What steps should I take?  File a contempt motion in Worcester area court?

ATTORNEY ANSWER:

Contact me. The jurisdiction of the Court must be established. If the Judgment is from Worcester County Probate and Family Court, the Worcester Court has jurisdiction to issue a Contempt Judgment and may Order her to reimburse you for attorney’s fees and costs.  However, if the Court that issued the judgment is outside of Worcester County and your ex-wife still resides in that county, the Worcester County Probate and Family Court does not have jurisdiction. The original Court does.  If you both live outside the original county or state that issued the Judgment, jurisdiction may lie in the Court of the County or state where the child resides. In any event, a letter should be sent to your ex-wife explaining that you intend to file contempt proceedings against her should she deny you the kids on Christmas. This letter should be sent to her immediately as a precautionary measure to attempt to dissuade her from doing this. 

Can I stop paying child support once son graduates college?

Posted by Michael Franklin
Additional Information: One of my kids will graduate from college in the spring.   He says if he doesn’t get a job right out of school, he won’t be able to pay rent on his apartment in Shrewsbury.  Of course, I’m going to try to help him as much as possible. My question is, the Divorce Settlement Agreement says kids are emancipated upon completion of a four year degree. Can I stop paying the court ordered child support when he graduates or must I file something with the Worcester Courts?

ATTORNEY ANSWER:

Minor children principally dependent on the custodial parent and the non-custodial parent while attending college on a full time basis become emancipated upon graduating from college. However, if they have not graduated, they are considered legally emancipated on their 23rd birthday regardless of whether they graduate or not. You will no longer be legally liable to pay child support beyond graduation. Therefore, yes, you may stop paying child support upon your child graduating from college. 

How can I reconcile with my wife if there’s a restraining no contact order?

Posted by Michael Franklin
Additional Information: My wife and I live in Greater Worcester area and I’ve recently been served a restraining order which does not permit me to have any contact with her.  Is it a violation of the order to discuss matters with the protected party if others are present, like attorneys?  Or can I get an approved meeting for peaceful contact?  There are many things I we need to discuss, involving the children, reconciliation, therapy and counseling.  Do I need an attorney to do this?

ATTORNEY ANSWER:

You will violate the Order if you meet with your wife (regardless of who is present) write her, call her, text her, Skype her or email her while the no contact provisions of the Abuse Prevention Order are in effect.  In fact, if any contact is made with her by third parties on your behalf this will also violate the Order. The only way you can speak with her without triggering a criminal violation is if the no contact provisions of the Abuse Prevention Order are either vacated or modified to allow you to do so. An attorney would certainly help you achieve this. 

My husband has left me, I won’t have money for rent next month.

Posted by Michael Franklin
Additional Information: My husband has left me and changed the passwords to our checking and savings accounts. The accounts are in his name only so I can’t even get another debit card.  I am in a rented apartment in Westborough (lease under his name) and will not have enough money for rent next month.  Will I be evicted?  What should I do?

ATTORNEY ANSWER:

Immediately, hire a lawyer, me preferably, to file and serve your husband with a Complaint for Divorce. This will allow you to request Temporary Orders making him responsible for supporting you and maintaining any and all insurance (i.e. medical, dental etc.) for your benefit until a permanent resolution can take place. Filing and getting him served with a Complaint for Divorce will also impose an asset restraining order on him that will prevent him from taking, hiding and selling any and all marital assets until the matter can be resolved. 

Do we actually need to get divorced in Mass?

Posted by Michael Franklin
Additional Information: I left my husband 5 years ago and moved out of state (we were married and lived in Northborough, MA). When I moved, we just needed a break.  Can we remain separated indefinitely or do we eventually have to divorce?

ATTORNEY ANSWER:

You may stay separated as long as you like but you will still be considered married. By not proceeding with and obtaining a divorce, he would have the ability to claim a share of your assets that you acquire post separation and he will have the right to claim a share of your estate should you pass away. 

How does the new law affect determination of alimony in MA?

Additional Information:

I am getting a divorce.  My wife and I bought a home together in Leicester and she wants to keep the house.  The only thing is I don’t think she can afford it, even with alimony.  She thinks the new alimony law in MA will help her maintain the same lifestyle as during our marriage.  How does the new law affect determination of alimony?

ATTORNEY ANSWER:

Alimony is still determined by need and the ability of the payor to pay it. The new law doesn’t change that. What it does change is the length of time one must pay alimony. Prior to the new law, once alimony was established, judges had little discretion to limit the amount of time it was required. If a marriage was for 10 years as an example, a payor would be ordered to pay alimony for life. Now, the new law gives judges guidelines and discretion as to the length of time alimony is to be paid. Thus, in the example of a 10 year marriage, alimony once established would be ordered for a set number of years that would be less than the length of the marriage. 

We are getting divorced. Will I have any rights to my wife’s house?

Additional Information:

When I got married, I moved into my wife’s house in Grafton.  We never added my name to the deed.  We are now getting divorced and I want to keep the house. Do I have any rights to it?

ATTORNEY ANSWER:

Yes, any property real or personal acquired during the marriage, regardless of whose name it is in, is considered marital property and is subject to division by the Court. Therefore, you do have rights to share in the equity of the real estate. 

With the new MA alimony law will I be entitled to anything?

Additional Information:

I have been married for two years and ready for divorce. We got married because I was pregnant with his child. We rent an apartment in Shrewsbury and I am a stay at home mom to our daughter.  He has money in savings, I do not.  With the new alimony law will I be entitled to anything?   I wouldn’t be able to stay at home to care for our daughter without his financial support.

ATTORNEY ANSWER:

First of all if you are the primary caretaker of your daughter, you would be entitled to child support according to the Mass. Guidelines. This would be approximately 1/3 of his gross income tax free. Most noncustodial parents don’t have the ability to pay alimony in addition to their child support obligation because generally 1/3 of their income goes to paying taxes and they must live on the remaining third. However, on occasion, a high income earner may be assessed alimony in addition to child support. In such cases with the new law you would not be entitled to alimony for a period longer than your marriage of 2 years. 

We’re getting divorced and my wife is withdrawing and hiding cash.

Additional Information:

We are in the process of getting a divorce.  We have been married nearly 10 years, living a modest lifestyle and have a mortgage free home in Edgemere.  She has probably withdrawn over $200K from our accounts over the past year and I suspect has hidden the cash within her parents accounts.  What can I do?  How will my divorce attorney prove she has hidden this cash?

ATTORNEY ANSWER:

Your attorney can subpoena her parents’ accounts over the last year and take her deposition. She can be asked about the specific withdrawals (why she made them etc.) and about any corresponding deposits made into her parents’ accounts at the deposition where she would have to answer these questions under oath. 

What is the process for a divorce modification?

Additional Information:

My ex-husband and I have been divorced for almost 6 years and he has been promoted so his income has changed.  Furthermore, rent for our Paxton apartment has increased significantly.  What is the process for a divorce modification for increased alimony and child support, and is it difficult?

ATTORNEY ANSWER:

This depends on what you want to change. Generally, divorce judgments are not written in stone as to issues of custody, medical insurance, alimony, child support, visitation and issues related to the child or children such as college. These provisions can be modified with the first step being the filing of a Complaint for Modification. In order to obtain a modification of a divorce judgment, a substantial change in circumstances must be shown. This is achievable in most cases because the Court understands that things can change over time.

However, if you want to modify the terms of how property was divided, this tends to be extremely difficult to do. 

Will I have rights to my wife’s house in Leicester when we divorce?

Additional Information:

When I got married, I moved into my wife’s house in Leicester. We are now getting divorced after 15 years of marriage.  The house is only in her name, we never added my name to the deed.  I’ve done all of the maintenance and improvements and want to keep the house. Do have any rights to it?

ATTORNEY ANSWER:

Yes, you have a right or a claim to a share of the equity of this real estate regardless of whether your name is on the deed. Your marriage gave you this right. However, if you executed a prenuptial agreement which protected this real estate from any claims you may have, your rights to the real estate may be limited by its terms.

What are the requirements for an annulment in MA?

Additional Information:

We have been married for 8 months, and have a 10 month old daughter. I just found out that my husband has a criminal background and has been using a fake name since I have known him.   What are the requirements for an annulment in MA?  How should I proceed?   I’d like sole custody of our daughter.  Does his deception affect his parental rights?

ATTORNEY ANSWER:

In order to obtain an annulment you have to show that the marriage was based on fraud. It sounds like you would qualify for an annulment in your situation. However, your husband is still the child’s father and as such would still be granted some parenting time. If you are the primary caretaker of the child, there is no reason why this would not continue to be the case. Certainly, the Court would consider your husband’s criminal background and the reasons he thought it necessary to use a name other than his own in awarding custody and visitation rights. The Court will consider what is in the child’s best interests in making such a determination. 

Can my ex-wife get custody of my son?

Additional Information:

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son.  She was put on probation for 5 years for hitting him and I’m not sure if she really wants to be part of his life or not.  My question is if I put it in my will that my brother will take care of my son if I die, will that happen or can my wife get custody if she wants? Thanks.

ATTORNEY ANSWER:

Your brother will have to obtain a permanent guardianship of your son should you pass away. The child’s mother may file a Complaint for Modification seeking custody after your death. The Court will always review what is in the child’s best interests when considering either your brother or the child’s mother as his caretaker. Go ahead and make your will naming your brother as custodian. Your brother can use this for the Court to consider in this situation. 

Will I be liable for half of my ex-wife’s school loan?

Additional  Information:

My wife and I are getting divorced.  She took out a loan so she could attend a college in Worcester. She said she would use her degree to get a job, but she hasn’t finished the program so technically the “community” hasn’t benefited from her going to school.   I suspect she really went back to school because she was bored being a stay at home mom.  Will I be liable for half of the loan?

ATTORNEY ANSWER:

No, since she gets the benefit of the education, the responsibility to pay the loan should remain with your wife. However, if you cosigned the loan, you will be jointly and severally liable to the lender. You can get a divorce judgment that requires her to reimburse you any amounts you are called upon to pay in that case.

Can I keep him from getting personal bank account records?

Additional  Information:

My husband and I are getting divorced after a 7 year marriage.  Can I stop him from getting a subpoena for my personal bank records for accounts that were opened as a single individual after we separated?  Our Worcester home is in both our names, as are our bank accounts.

ATTORNEY ANSWER:

No, he has a right to see what is in those accounts. Anything purchased, collected, earned, saved and accrued during the marriage by either party is subject to division and therefore, both parties must disclose and have a duty to disclose these assets to the other.

In a divorce, am I entitled to 50% of my wife’s inheritance?

Additional Information:

My wife and I live in Shrewsbury MA and are going through a  divorce. I’ve financially supported her for 21 years of marriage.  She was a stay at home mom for all but 1 year of our marriage.  She just received an inheritance of over $200,000.  Am I entitled to 50%?

ATTORNEY ANSWER:

Yes, you are entitled to a share of the inheritance because the inheritance is considered part of the marital estate to be divided. Whether your share is 50% must be discussed in more depth through a private consultation with your lawyer.

How can I get a divorce if I have no contact with my husband?

Additional Information:

I separated from husband in 2008 and moved to Westborough, MA from NY. How can I get divorce if we have no contact? We did not have any children from marriage but I do have a ten year old from previous. We parted on bad terms.  I have no way of contacting this man as I do not know where he moved after I left. How hard is it to get a divorce in the State of Massachusetts?

ATTORNEY ANSWER:

You may file for divorce in Westborough MA and request the Court to notify your husband through publication in a local newspaper that serves his last known address. This is routinely done for parties who have lost touch with each other.

In Massachusetts, is there a waiting period before you can file for divorce?

Additional Information:

We got married and we realized quickly afterward that it was a mistake.  In Massachusetts is there a waiting period before you can file papers for an uncontested divorce?

ATTORNEY ANSWER:

No, you may file for a divorce or an annulment after the marriage with no waiting period. It sounds like you may want to consider an annulment because of your quick realization that the marriage was a mistake.

Can an order for child support be modified without going to court?

Additional Information:

My ex and I have agreed to lowered payments and we have drawn up a new agreement which we both signed. The problem is that every time she gets angry she threatens to take me to court for back child support based on the previous amount in the divorce decree, reneging on our new signed agreement. Is what we did legally binding or can she sue me for back child support?

ATTORNEY ANSWER:

Unless your agreement is approved by the Court, it is not considered a valid Modification of the prior Court Judgment or Order. You may find that you owe the difference between what you paid in support and what the previous Court Order or Judgment required you to pay.

Can my soon to be ex-wife claim monies from my new business venture?

Additional Information:

My wife and I have been separated for over a year. I am living with a new partner and considering starting my own business. Will she have any claim on the monies when we go through the divorce?

ATTORNEY ANSWER:

Any assets acquired during the marriage are subject to division regardless of separation. However, judges may use their discretion pursuant to the factors enumerated in Mass. Gen. Laws C 208 Sect. 34 in deciding how assets are to be divided. Your question refers to monies from your business. If you are referring to income instead of assets. The monies that your new business is earning reflects your earning capacity and earning potential and would be included in determining child support if children are involved. Your income from the business may also be used in calculating alimony if it is determined that your wife has a need for spousal support and that you have the ability to pay alimony.

Can a judge order my husband to sell his stock?

Additional Information:

We are currently 3 months behind on our mortgage payments and have been separated for 6 months. My husband is refusing to cash in $70K in stock to help pay the monthly mortgage. Can a judge order him to sell his stock?

ATTORNEY ANSWER:

A judge may order your husband to pay the mortgage in divorce proceedings by liquidating the stock. This may be done as a temporary measure to preserve the equity in the marital real estate. More information is needed to see whether a judge would do this. For example, if the home is worth less than what you owe on the mortgage, a more practical solution may be to have a short sale for the real estate. This would preserve the stock with a positive value for division. Alternatively, if the real estate has equity that could be lost to foreclosure, liquidating the stock to pay the mortgage makes sense if there is no other asset to liquidate, or source of income available, to pay the mortgage. You need to consult with an attorney to develop a strategy that works best for you.

What are the guidelines for divorce in Massachusetts?

Additional Information:
I left my husband in 1997 and we have been separated since. Do I still have to file for divorce after so many years?

ATTORNEY ANSWER:
You still must file for a divorce. You may file for a divorce based on an irretrievable breakdown of your marriage. This is also known as a “no fault” divorce. You may also file for a grounds based divorce depending on specific reasons pertaining to your personal circumstances such as cruel and abusive treatment, abandonment, gross intoxication, imprisonment or adultery. You need to speak with an attorney to discuss your case in more detail.