Think Carefully Before You Move Out

Moving out of the marital home is complicated, emotional, and stressful, but the move must still be made carefully.  Here are some pointers to consider when moving out during a separation:

1) Location.  Some litigants choose the first rental they can afford, even if it’s an hour and a half away from the marital home.  If children are continuing to live in the marital home, distance could cause a logistical nightmare.  How can you share time with the children if it’s a long commute from one home to the other?  How can the children sleep at your place on a weeknight if they’d have to wake up at 5:00 am to get to school on time?

2) Size and suitability for children.  Litigants sometime think their first rental is a stopgap until a permanent home is possible.  Be weary of this line of thinking.  Even if you’re staying in a studio for only three months, how can the children sleep over during that time?  Is it even feasible for them to spend daytime in your small quarters?  If the rental is in a bad neighborhood, will the court be willing to let them visit you?

3) Cost.  While you need to spend enough money to find a convenient location and suitable size, don’t spend all your money.  Within weeks, you may be facing hefty additional financial obligations—alimony and child support.  Additionally, you may still be required to contribute to the mortgage on the marital home until the divorce is entered.  Make sure you have sufficient financial flexibility. 

4) Who keeps the marital home?  Often, the person to initially stay in the marital home is the person to keep the marital home.  Plan accordingly.  If you have your heart set on keeping the marital home, don’t move out.  Consider moving into the guest room or basement instead. 

What About Fido?

One of the great advantages of a childless divorce is you are more likely to be done with your partner forever.  Without custody and child support to modify and fight over in the future, you are unlikely to return to court.

Recently, however, I’ve seen an uptick in the number of childless divorces where the parties continue to fight post-divorce… over the dog!  If you are in the middle of a childless divorce, and thinking about retaining joint legal or joint physical custody over your pet, here are some things to consider:

1) Few states have clear statutory guidelines for time-sharing with an animal or financial support for an animal.  You and your spouse will be creating an arrangement that is probably not backed by the law.

2) Along those lines, if you and your spouse fight over the pet post-divorce, a court is not going to want to hear about it.  Most judges do not have the patience to hear about Fido when they have a full docket of cases with serious issues.  Your fight about which dog walker is best is not nearly as compelling as a child sexual assault case.

3) Unlike child support, which is handled by the Department of Revenue, there is not a state-run agency for monitoring the payments of pet financial support.  In other words, your spouse will need to make payments directly to you, rather than the Department of Revenue, and there will not be an agency to file a claim on your behalf if your spouse is non-compliant.

4) While pets don’t live as long as humans, they can live a long time.  Fifteen years from now, do you really want to be fighting with your spouse of two years over whether or not to put Fido to sleep??

Deposition Pointers for the Nervous Witness

Family law litigants pursue depositions for a variety of reasons—to dig for deeply hidden information, to intimidate the opposing party, and to try to uncover the opposing party’s legal strategy.  Like trial, depositions can be stressful, scary, and expensive.  Here are some tips on how to stay calm—and successful—while being deposed:

1) Pause after every question.  This gives your attorney an opportunity to object.  While you’ll likely have to answer the question after your attorney’s objection, the objection may help you know what your attorney is worried you’ll accidentally say in your answer.

2) When you answer each question, look at the stenographer rather than opposing counsel.  Opposing counsel’s goal is create a fluid conversation with you, in which you’ll become comfortable and say more than necessary.  If you make eye contact with the stenographer instead, it’s challenging for opposing counsel to create a chatty environment.

3) Answer the question, and only the question.  Think about the briefest way to answer the question.  It may be a simple yes or no.  Do not provide a narrative response or superfluous detail unless absolutely necessary.

4) If you don’t understand the question, ask for clarification. 

5) If you are not certain of the answer, say “I’m not certain” or “I don’t know” or “I don’t remember.”  Your answer will be memorialized in a transcript, and opposing counsel will look for inconsistencies between your comments at trial and at deposition.  It’s harder to find inconsistencies when you only provide answers that you are certain are accurate.  

Retroactive Child Support

As I’ve mentioned previously on this blog, timing can be very important.  Previously, we’ve discussed how the date of a divorce complaint can impact the duration of alimony.  Today, I’ll discuss how the date of a divorce complaint can impact retroactive child support.

The Massachusetts divorce statute does not provide for retroactive child support.  In other words, if you file and serve your divorce complaint in July, you are not going to be able to receive child support for time before that July.  The court may decide to give you child support retroactive to that July but not before.

There is a distinction for paternity cases—cases in which you have a common child/ren but were never married.  In a paternity matter, under 209C, you may be able to obtain retroactive child support prior to the filing and service of the divorce complaint.

Accordingly, it’s important to work with your attorney to strategize the timing of your divorce.  On the one hand, you might not want to initiate a divorce until you’re emotionally ready, but on the other hand you may also miss out on some child support if you wait too long.