It might surprise people to hear that the bread and butter of my practice is post-divorce litigation. Although I have a number of clients initiating divorce, the majority of my clients are already divorced. They’re back in court to change a separation agreement or to enforce a separation agreement. Post-divorce litigation is exhausting, expensive, and frustrating. Here are my tips on how to keep your post-divorce costs low: 1) Consider every worst-case scenario and provide for it in your separation agreement. For example, if Dad has a history of alcohol abuse and has been sober for six years, your separation agreement should include a provision for what will happen if Dad starts drinking alcohol again. Will he lose time-sharing? Legal custody? 2) Scour your separation agreement for holes. Let’s say there are two minor children and your separation agreement provides that each party will claim one child on their taxes. Fix your separation agreement so it identifies which parent will claim which child. This way the parents can’t fight about claiming the younger child, who will bring a refund for a longer period of time. 3) Unless absolutely necessary, your separation agreement should not require you to renegotiate anything in the future. I once saw two parties go through a multi-year trial because their separation agreement stated that Dad would pay the children’s “reasonable extracurricular costs, as the parties agree.” Mom thought this meant Dad should pay for son’s private baseball coaching, son’s baseball camps, daughter’s cheerleading camps, daughter’s SAT preparation, and daughter’s college tour visits. Dad disagreed. They spent far more in legal fees than the cost of all these extracurricular activities combined. 4) Pay your child support and alimony. If you don’t pay it, you’ll be back in court for enforcement proceedings. 5) Speak to your attorney about filing modification actions. A modification requires a material change of circumstances. Your attorney will have a better sense of whether a material change of circumstances actually exists.
Monthly Archives: April 2012
The Unlikely Bigamist
Family lawyers take pride in the interesting nature of our work, and I like to comment that I never have a dull day at work. I received a particularly interesting phone call two weeks ago that went like this—
Caller: Can you help me get divorced by July?
Me: I can help you get divorced but July is very soon. Why do you have a deadline of July?
Caller: Because I’m getting remarried then!
Me: I’m happy to help you but you should know that Massachusetts, and most states for that matter, has a mandatory waiting period before the court will grant a divorce. And bigamy is a crime.
As I’ve explained previously on this blog, in Massachusetts, there is a mandatory nisi period, or waiting period. The wait is required (in differing durations) for both contested and uncontested divorces. Many people leave the courthouse with a Judgment of Divorce Nisi, and believe they are divorced. This is incorrect. You are not divorced until your nisi period is over. If you are married during your nisi period, you will be guilty of bigamy.
In order to stay out of criminal court, consult with your divorce lawyer about the nisi period before you remarry. And, if you must remarry before your divorce is final, as the caller above insisted, consider doing a commitment ceremony instead with no legal elements.
Have you properly prepared yourself for divorce?
Yesterday, a client confided in me that she did not realize how much her divorce would change her life. She discussed how moving out of her prior home had impacted her social life, financial stability, and emotional welfare. Indeed, many people naively conceive divorce as an excision of only one unhealthy relationship, and do not properly consider the impact it has on all arenas of life. Before initiating a divorce, ask yourself the following questions: 1) If you divided up your household income in two, what would be the figure? Could you live on only half of your current household income? Are you willing to reduce the size of your home, the frequency of vacations, the amount you spend shopping, etc? 2) If you are currently unemployed, you will probably need to obtain employment in order to live without your spouse’s income. Are you able to find new employment? Are you willing to work outside the home? 3) Are you able to identify all marital assets and locate them? Do you know the value of your marital home, cars, investment accounts, retirement assets, 529 accounts? 4) If you do not currently handle your household finances, how will you budget and manage the finances once you have your own household? Do you have a financial planner? 5) Can you conceptualize how this divorce might impact you and your spouse emotionally? Are you prepared to co-parent in the wake of your spouse’s initial anger? 6) Can you conceptualize how this divorce might impact you and your spouse socially? If you both have your closest friends through your son’s soccer team, will you continue to be comfortable socializing with the soccer team parents together? 7) Are you prepared for your in-laws and other friends to initially resent you? 8) Co-parenting can be challenging. How do you feel about only celebrating Christmas with your children on alternating years?
How is child support determined?
As I’ve discussed previously on this blog, child support is a formula with a limited number of variables. Your attorney, the Department of Revenue’s attorney, or the court will employ the formula. In Massachusetts, the first variable is weekly income. The court needs to know the weekly income of the payor and the payee. People with traditional employment can use their last three pay stubs and W-2s to prove the total income. People who are self-employed should prepare for a bit of tension over their income, since opposing counsel might request their company’s books and accounts, a deposition of the bookkeeper, and tax documentation. Beware that commissions, royalties, bonuses, dividends, veteran’s benefits, unemployment, pensions, rental income, and more count as income. The next variable is weekly child care costs. This figure must be the reasonable child care costs due to a party’s gainful employment. In other words, a stay-at-home parent is probably not going to receive a credit for a weekly nanny, unless the attorneys can make an argument for a deviation from the regular child support formula. This figure is then deducted from the gross income of the party who pays the child care. Health insurance costs for the minor children are also deducted from the gross income of the party who pays health insurance. The party who covers the health insurance should provide a print-out from their human resources department indicating the exact cost to cover the children. This is not necessarily the amount the party pays. Instead, it is the amount the party pays minus the amount the party would pay for an individual, non-family plan. The party who covers insurance should similarly provide the figures for dental and vision insurance for the children. The final variable is other child support obligations, which are only relevant where there is a legal obligation to pay child support. To get credit for child support, you must have a standing order to pay. Most likely, you will not receive a full credit for support where you are overpaying a support order, paying support to an emancipated child, or paying for a child whose support has never been adjudicated.