New Developments in Domestic Violence Law in Massachusetts

There have been a number of new developments in criminal law in our state. Here are some of the developments most pertinent to divorce:

  • In criminal law, there is now a charge of domestic assault and battery, which did not previously exist. The criminal charge of domestic assault and battery is for people who were/are married with a child together. One benefit of this charge is that it offers an enhanced sentence for repeat offenders.
  • Also in criminal law, there is now a charge for strangulation/suffocation. Like domestic assault and battery, this charge offers an enhanced sentence for second-time offenders. This charge also offers an enhanced sentence where the victim is pregnant.
  • In Massachusetts, victims of domestic violence can now get up to fifteen days of unpaid leave for domestic violence-related needs if the employer employs 50 or more people. Family members of domestic violence victims may also be allowed to take unpaid leave to help with domestic violence- related needs. The organization Employers Against Domestic Violence (http://employersagainstdomesticviolence.org/) is a great resource on this topic.
  • Domestic violence often falls within the purview of both the District Court and the Probate Court. Now, when the District Court hears a 209A matter, the District Court can modify custody and visitation pertinent to the 209A for up to thirty days until it is revisited by the Probate Court.

What is the 410 Exchange?

Divorce involves a lot of paper.  Within forty-five days of service your divorce complaint, the Massachusetts court rules require you to complete a 410 exchange, which involves collecting the following documentation and providing it to opposing counsel:

 

  • Your federal and state income tax returns and schedules for the past three years, as well as the tax documentation for any private entity in which you have an interest (like a limited partnership); and

 

  • Your four most recent pay stubs; and

 

  • Documentation regarding the cost and nature of your available health insurance coverage; and

 

  • All your bank account statements for the past three years; and

 

  • All your statements for all your investments and retirement assets for the past three years; and

 

  • All loan or mortgage applications you made in the past three years; and

 

  • All your financial statements or statements of assets/liabilities in the past three years.

 

Collecting this documentation is a lot of work. As soon as you start considering divorce, you should make an effort to get this paperwork in order. It often takes banks a while to retrieve three years of statements, so you will benefit from getting started on this task as early as possible.

 

 

Can Massachusetts Hear a Custody Case About a Child Who Does Not Live in Massachusetts?

Yes, Massachusetts can initiate or modify custody orders for children out of state if:

  • Massachusetts was the home state of the child in the past six months, but now the child no longer lives in Massachusetts because one parent removed the child while the other parent remains in Massachusetts.
  • No other state would have jurisdiction as the home state, and the child and parents have a significant connection to Massachusetts, and there is substantial evidence about the child’s care in Massachusetts.
  • Another state has declined to exercise jurisdiction on the ground that Massachusetts is the more appropriate forum and it is in the best interests of the child that Massachusetts assumes jurisdiction.

[M.G.L. Chapter 209B Sec. 2]

Protecting Against a Negotiation Breakdown

I commend my clients who are determined to settle their divorces out of court.  I’ve mentioned the advantages of uncontested divorce many times on this blog.  The benefits include control over one’s divorce agreement, control over the timeline, control over the tone of the divorce, and control over the attorney’s fees. 

That said, it’s possible to waste time if you commit to negotiation and then the negotiation has a complete breakdown.  Negotiations break down for a number of reasons.  Perhaps one party learns about something new in negotiation, like a concealed asset, about which the parties cannot agree.  Perhaps one party enters the negotiation in bad faith, deliberately trying to stretch out the amount of time before the parties enter the court system for alimony purposes.  Or perhaps one of the attorneys is not negotiation-minded and discourages settlement even though the parties are in agreement.

In a negotiation breakdown, the parties must begin the divorce process with the court by filing a contested complaint and waiting for a hearing date.  In order to save time, talk to your attorney about whether you should file a contested divorce before/during negotiation and then convert it to an uncontested divorce once you settle.  This approach preemptively places you on the court’s calendar, so you do not have to wait if your negotiation breaks down. 

Transferring a Case

If and when you decide to switch counsel on a matter, you will want to be sure the transition is smooth.

The first step is to fully communicate with both attorneys so they understand the case is being transferred, the timing of the transfer, and your goals for the transfer.  Encourage them to call one another to discuss the case.  You might also ask former counsel to share his objectives and strategy with new counsel.

The next step is to make sure your file is copied and delivered to new counsel.  The file should include the notes, correspondence, pleadings, and court documentation.  Your former counsel may need a little time to copy and send the file, which is all the more reason to clue him in as soon as possible.

Finally, as you move forward with new counsel, be sure to specifically state your goals for this new representation.  You don’t want to have to transfer counsel a second time.  You will find that attorneys are hesitant to take cases that have already transferred counsel once. 

GUEST BLOG POST: Social Media and Divorce: 5 Useful Tips to Follow

The divorce process can be one of the most difficult things you will ever have to go through. Naturally, you may feel the urge to post on Facebook, Twitter, or other social media accounts about what you are going through. You should be aware, though, that your spouse’s legal team will likely have access to anything you post on the internet. Even if you have increased your privacy, it’s always better to be safe than to reveal information about yourself that could be damaging to your case. Here are a few tips to follow in regards to your social media while going through a divorce.

1.    Keep Mutual Friends in Mind. You may have unfriended your spouse, but be aware of any mutual friends you may both have. You may think you know someone very well and can trust them not to tell your spouse about whatever you are posting. However, there are many instances where this is not the case.

2.    Be Mindful of Pictures you are Posting, Check-Ins, and other Activity. Do not post inappropriate pictures or pictures that would depict you in an unfavorable light (drinking, etc.) You may want to also hold off on “checking in” at the bar or any other locations that may be able to be used against you. Just to be on the safe side, it may be wise to post the least amount of personal information possible.

3.    Change your Privacy Settings to make yourself Less Visible. You can change your settings so that people aren’t allowed to search for you unless they specifically know you. This may be a good idea until your case is over. You may also want to lock certain accounts so that people can’t see them unless you specifically want them to. This will keep unwanted attention away from your social media profiles.

4.    Do not create any Online Dating Profiles during the Divorce Case. There are many ways an online dating profile may be used against you during divorce proceedings, particularly if there are children involved. It’s wise to abstain from online dating while you are going through this process. You should also make sure you aren’t having any flirtatious interactions with anyone in a public form or having inappropriate pictures of you and others posted.

5.    Utilize direct communication tools when possible. It’s always much safer to use phone, e-mail, and direct messages to communicate with friends and family. If you have conversations on your Facebook wall or on Twitter, they are much more out in the open, and your spouse’s legal team may easily gain access to these conversations.

These are just a few tips to follow in regards to your social media when you are going through a divorce. The best thing to do is to just always be cautious about anything you post on the internet. It’s always a good idea to ask yourself, “Would I want the entire world to see this?” before you post anything. Even if you have more secure settings, they may not be as secure as you think they are.

Sara Crawford is a freelance writer from Atlanta, Georgia who often blogs for Hait, Eichelzer & Kuhn, divorce attorneys in Alpharetta, Georgia.

Tax Exemption Negotiations

Often in divorce, both parents want to claim the child(ren) as tax exemptions.

In this negotiation, consider the probable number of years to claim a child.  Children who are full-time students can be claimed for a longer period of time, for example.  Also, if you are alternating years, consider who has the likely advantage of more years to claim—the person claiming even or the person claiming odd years.  And check with your CPA about the expected financial benefit.  Is it as great as you think?

Once you and your spouse reach agreement, be sure your Separation Agreement includes a provision that you will execute all necessary documents.  Currently, I.R.S. Form 8332 must be completed.  Better to agree to complete necessary paperwork now rather than fight over it on April 15th

Why You Should Have Counsel Before or During Mediation


Mediation offers many advantages over litigation.  Mediation is far less expensive, occurs at the pace you choose, allows you to reach creative solutions tailored to your own lives, and leads to outcomes that are generally more sustainable than court-ordered outcomes.  However, if you choose mediation, you should do it right.  The right way to pursue mediation is to consult counsel before or during the mediation process.


As I’ve mentioned previously on this blog, the mediator is a third party neutral who cannot offer legal advice.  So, in order for you to know your rights under the law and properly strategize arguments and approaches to obtain those rights, you need to meet with separate counsel.  It’s important to talk to that counsel before or during the mediation, not after.  If your attorney gives you advice pre-mediation, you will have an informed approach to mediation and effectively use the mediation time.  If you attorney gives you advice post-mediation, you may realize that you want to back out of the agreement you just reached in mediation, which would be a waste of your time, your spouse’s time, and the expensive mediator’s time.


Some clients believe that they can read the law themselves and do not need an attorney at all.  Beware!  At the uncontested hearing, when the court decides whether or not to approve your Separation Agreement, the court will ask if you had the opportunity to consult counsel.  If you answer negatively, the court will examine your Separation Agreement with extra scrutiny because it will be less likely to be fair and reasonable.  Again, everyone’s time will be wasted if the court refuses to approve the Separation Agreement. 

College Contribution


If you and your spouse have minor children, you should consider their future college education costs.  There are a number of creative ways to provide for the payment of those expenses.  Here are a few:


1) The child shall make a good faith effort to apply to all potential grants and scholarships.  The parties shall then pay the remainder of college education costs proportionate to their incomes.


2) The child shall make a good faith effort to apply to all potential grants and scholarships.  The parties shall then pay the remainder in equal shares.


3) Wife shall be responsible for 1/3 of college education costs, Husband shall be responsible for 1/3 of college education costs, and Child shall be responsible for 1/3.


4) One party agrees to pay the entirety of college education costs. 


5) Use a public school as a reference point.  For example, one party agrees to pay the total amount of college education expenses not to exceed the cost of attending UMass-Amherst for four years.  The child shall be responsible for all costs beyond that.


Be careful.  If your children are very little, you might be negotiating in the dark because you do not know the many things that may happen between now and the moment your child enters college.  Be sure to consult with an attorney to draft an agreement that meets your financial best interests. 

A Contract to Stay Married


Whenever a prospective client first enters my office, I tell the prospective client that s/he can spend money on a divorce and be sad and lonely once divorced.  Or the prospective client can spend money on a marital counselor instead and have a shot at happiness.


Many times, once people begin marital counseling, they realize they can be happy if they change the financial arrangement within their marriage.  I often hear clients saying they want to start living with separate bank accounts, or they only want to continue the marriage if it’s determined now how property will be divided if they divorce in the future.  Some people want to memorialize the new arrangements or negotiations in a contract called a postnuptial or marital agreement. 


Marital/postnuptial agreements, like prenuptial agreements, are tricky because they are not always enforceable.  The Massachusetts Supreme Judicial Court discusses their enforceability in Ansin v. Craven-Ansin.  In order to be enforced, the SJC requires that the marital agreement  was “negotiated by independent counsel for each party, was not the product of fraud or duress, and was based on full financial disclosures by the husband, and that the terms of the agreement were fair and reasonable at the time of execution and at the time of divorce.” 


However, even if you meet those factors, the court may still choose to not enforce the marital agreement.  It’s worth paying an attorney to work on your marital agreement in order to increase the likelihood that the court will enforce it.