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The Divorce Process

The divorce process can be confusing, and it’s helpful to have a sense of the stages in probate court.  Here’s what you can expect generally.

Opening Pleadings: The Plaintiff’s complaint opens a new matter in probate court.  The Defendant can respond with an answer and counterclaim.  It may also make sense to file a motion for temporary orders or other pertinent motions.

Temporary Hearing: If a motion for temporary orders has been filed, the court will schedule a temporary motion hearing.  This hearing is an opportunity to argue only the temporary issues in the temporary motion, such as a temporary time-sharing arrangement while the divorce is pending.  This hearing is not an opportunity to argue permanent issues like property division.  In fact, some judges don’t even like to hear custody issues on a temporary basis.

Discovery: Once you and your attorney strategize your position and arguments, you will begin collecting and organizing your supporting evidence.  Evidence can be collected through interrogatories, requests for production of documents, subpoenas, and depositions.

Pre-Trial 4-Way: Before the pre-trial conference, the court expects you and your counsel to meet with your spouse and opposing counsel to settle the divorce.  Try your very best to settle at this point!  In the event you are unable to settle, you will need to draft and file a pre-trial memorandum before the pre-trial conference.

Pre-Trial Conference: The court will hold a pre-trial conference at which time the court really wants you to settle.  You will present a nutshell summary of your theory of the case, and the court will give guidance on how the court might rule if the case went to trial.  The goal of this feedback is to help you settle.

Trial: In the unfortunate case you have not yet settled, you will have a trial, which is an opportunity for each party to present evidence in support of his or her arguments.  You should do your absolute best to settle before getting to this stressful and expensive point.

In between these hearings, you may have status conferences, case management hearings, motion hearings, and more as needed.

The Four Types of Alimony in Massachusetts

Types of Alimony

The recent alimony law clarified the distinctions between the four types of alimony, but why does the type of alimony matter? It matters for a few reasons. The type of alimony explains the intent of the alimony, the duration of alimony, and whether or not the alimony is modifiable.

General Term Alimony: General term alimony is based on the duration of the marriage, and is modifiable upon a material change of circumstances. General term alimony can be suspended, reduced or terminated when the recipient spouse has maintained a common household with another person for at least three months. General term alimony generally terminates upon the payor attaining full retirement age.

Rehabilitative Alimony: Rehabilitative alimony generally shall not be more than five years, although it can be extended if unforeseen events prevent the recipient spouse from becoming self-supporting at the end of the term. Rehabilitative alimony can also be modified within the five year rehabilitative period.

Reimbursement Alimony: Unlike the other forms of alimony, reimbursement alimony does not follow the traditional calculation where the alimony amount is one-third of the difference between payor and recipient’s incomes. Once ordered, reimbursement alimony shall not be modified.

Transitional Alimony: Transitional alimony shall not last longer than three years, and transitional alimony shall not be modified, extended, or replaced with another form of alimony.

Alimony and Child Support

When the new alimony law was promulgated, we attorneys hoped it would provide consistency in the law. In some ways, the new alimony law has reached that goal. We now have a framework for determining general term alimony, we know when alimony should generally end, and we have a clear understanding of the categories of alimony.

Yet, the new alimony law has left one question unanswered and convoluted. The question is: how do you determine alimony and child support when a case calls for both?

Judges are answering this question differently. Some judges believe that the first $250,000 of income should be used to calculate child support and the remaining income should be used to calculate alimony. Some believe that alimony should be calculated first and then child support should be determined after.   Some believe that a certain percentage of the income should be used for child support, and the rest should be used for alimony. Some like to see all the different options presented to them and then they will choose whichever feels most equitable.

Your attorney is best suited to navigate these unpredictable waters. Where the law is unclear, an artful and persuasive argument is crucial and most likely worth the attorney’s fees.

Determining Child Support When There Are Children From Multiple Relationships

For some families, child support is a straightforward calculation. You plug each parent’s income in the Child Support Guidelines Worksheet, and you get a final figure.

However, where a parent has other children from another relationship, the child support calculation is more complicated.   Let’s say Dad pays child support pursuant to court order for child Annie from his prior marriage. He is now divorcing his second wife who is mother to child Brian. In that scenario, the court will deduct Dad’s court-ordered child support for Annie from his gross income and then use the remainder as his new gross income for the calculation for child support for Brian.

Now, let’s imagine that there is no court-ordered child support for Annie. Instead, Dad pays Annie’s mother a voluntary payment. As long as that payment is reasonable, actually being paid, and Annie does not reside with Dad, then the court will still deduct that voluntary child support for Annie from Dad’s gross income before calculating child support for Brian.

Finally, let’s imagine a situation where Dad lives with Annie, so he does not pay child support for her. In that scenario, the court would calculate a hypothetical amount of child support for Annie, pursuant to the Child Support Guidelines, and deduct that hypothetical amount from Dad’s gross income before calculating child support for Brian.

As you can see, these variations get complicated, which is why it’s important to meet with an attorney.

Preparing Your Financial Documents for Divorce

Divorce is a lot of work! In order to get divorced, you and your spouse need to make a complete financial disclosure. Preparing for this can take months.

As soon as you realize you want to get divorced, you should start preparing your documentation. The first step is to make a list of every source of income, piece of real estate, motor vehicle, retirement asset, bank account, investment, and debt that is linked to either you or your spouse.

Next, collect supporting documentation for that item. For example, for a source of income, gather the most recent paystubs and most recent W-2s. For a piece of real estate, gather the deed, the mortgage statements, the most recent appraisal, and statements from any home equity loans. (You ultimately will need several years of statements, but think twice about making any requests that will alert your spouse that you are considering divorce. For now, do your best to gather documentation discreetly.)

Finally, once you’ve copied this documentation and organized your copies in a safe location, comb through the documentation. Are there any mysterious transfers? If so, can you figure out where the money went? Any forensic leads you can give your attorney at the initial consult will be helpful. Also, look for patterns. Does your spouse spend a lot of money on online poker? Again, these observations may be useful in your divorce proceeding.

Ultimately, your divorce attorney will give you final instructions on document preparation. The more financial documentation you provide to your divorce attorney upfront, the better prepared she will be and the less she will charge you during the discovery stage of your divorce.

 

 

 

When Do You Stop Negotiating?

In negotiation, it’s necessary to know when to end negotiation efforts. If you don’t sufficiently attempt to settle, you may miss an opportunity to craft a settlement that meets the needs of both parties better than an order from the judge. On the other hand, if you hang on to negotiation attempts too long, you may reveal all your cards, giving opposing counsel ample time to construct counterarguments.

The length of negotiation should be determined by a cost-benefit analysis. Ask your attorney what the legal costs will be if you don’t settle at the temporary motion hearing? What if you don’t settle by the pre-trial conference? What if you don’t settle by trial? Most likely, twenty hours of negotiation costs far less than the price tag for trial. This is an analysis that your attorney should be willing to walk you through.

If you and your attorney assess that negotiation makes the most financial sense, next assess the likelihood that negotiation will lead to settlement. Is the opposing party softening? Does s/he seem willing to collaborate with you? Does the opposing party listen to your offers and contribute reasonable offers of his/her own? If you’re making progress, keep going. Even a partial stipulation should lessen the cost of trial.

How Does the Court Decide Custody in Divorces?

Custody is often a very emotionally-charged piece of divorce. Like many states in this country, Massachusetts uses a “best interests of the children” standard.

Generally speaking, in the absence of misconduct, the rights of both parents are held to be equal, and the court considers the “happiness and welfare of the children” to determine their custody. M.G.L. Ch. 208 Sec. 31. To determine “happiness and welfare of the children,” the court looks to how the present or past living conditions of the children impact the children’s physical, mental, moral, and emotional health.

With this knowledge, clients can negotiate their own custody arrangement outside of court. Once the parents have reached an agreement regarding custody, the court may enter an order which merges the provisions of the agreement related to the children. However, where there are specific findings that the parents’ agreement is not in the best interests of the children, the court may decline to accept the agreement.

Prepare for (Tax) Battle

Clients often want to battle over who can claim the children on their taxes. If you fight over the taxes without consulting a CPA, you may end up with a result that is neither in your best interests nor in your children’s best interests.

A CPA will illuminate for you the different tax credits and deductions available and let you know: what tax refund you can expect to receive while claiming your children, what tax refund you can expect to receive if not claiming your children, what tax refund your spouse can expect to receive while claiming your children, and tax refund your spouse can expect to receive if not claiming your children. How can you really negotiate if you don’t know these answers? You may be surprised to learn that some tax credits, like the education credit, are only available if your income is under a certain threshold. Therefore, you may not even be able to receive the credit if you claim your child. In that case, wouldn’t you agree that it’s in everyone’s best interests for your spouse to claim the child? Perhaps you and your spouse can further agree that part of the tax refund will then be used for specific expenses for your child.

Furthermore, if you and your spouse are in serious disagreement and take the issue of taxes before a judge, the judge won’t consider the topic without an analysis provided by the CPA. Do your homework and consult with your CPA. Your CPA’s guidance will illuminate your negotiations and also please the judge.

Post-Hearing Motions

Post-Hearing Motions

Sometimes clients are unhappy with a final judgment. Although it can be exceedingly difficult to overturn a judgment, you may be able to take action if you believe there is a mistake in a judgment or if you think the judgment is not supported by the evidence before the Court.

The Massachusetts Rules of Domestic Relations Procedure provide for several types of post-hearing motions:

 

  • Rule 52 addresses a Motion to Amend Findings of Fact
  • Rule 52 addresses a Motion to Amend Conclusions of Law
  • Rule 59 addresses a Motion for a New Trial
  • Rule 59(e) addresses a Motion to Amend Judgment
  • Rule 60 addresses a Motion for Relief from Judgment or Order.

 

Standing Order 2-99 details the procedure to file and serve one of these motions.

 

Post-hearing motions are tricky, high-stakes, and time-sensitive, so it is crucial that you consult with an attorney before pursuing one.