Immigration and Family Law

Attorney Silber co-authored an article, Custody of Children in Mixed-Status Families: Preventing the Misunderstanding and Misuse of Immigration Status in State-Court Custody Proceedings, which appeared in the Summer 2013 issue of Family Law Quarterly.  Here is an excerpt from the introduction:

        “The immigration debate is at the forefront of discourse in American society. Since 2005, there has been a growing consensus about the need for comprehensive immigration reform. In his January speech on comprehensive immigration reform, President Barack Obama urged us to remember that ‘this is not just a debate about policy. It’s about people,’ and that ‘the overwhelming majority of these individuals aren’t looking for any trouble. They’re contributing members of the community. They’re looking out for their families. They’re looking out for their neighbors. They’re woven into the fabric of our lives.’
        While immigration reform continues to be debated at the federal level, the immigration debate has also been underway at the local level. Some state and local jurisdictions have passed their own anti-immigrant laws in the course of this debate. The United States Supreme Court has overruled many, but not all, of these state law provisions and bias against immigrants has begun to manifest itself in a variety of ways in communities across the country.”

The article goes on to provide guidance for litigants in mixed-status family cases. 

What is QDRO?

In order to divide a retirement asset, specifically a defined benefit plan or a defined contribution plan, the court must sign off on a qualified domestic relations order, also known as a QDRO or QUADRO.  The QDRO is a court order that authorizes the plan administrator to assign an employee spouse’s benefits to a non-employee spouse.  Generally the process goes as follows: the parties agree to division of a retirement asset, the parties jointly select a third party attorney to draft the QDRO for that asset, both parties sign the QDRO and send it to the judge, the judge signs off on the QDRO, and the finally the parties submit the executed QDRO to the plan administrator.  It’s important to consult an attorney when dealing with division of retirement assets, because QDROs are very technical.  Furthermore, an attorney can work with you to determine the tax ramifications of dividing retirement assets. 

Common Child Support Questions

This post will answer the child support questions I most commonly hear. All answers will reflect the new Massachusetts child support guidelines, which became effective August 2013.

1) Will the court consider a second job of the payor?  What if the payor took on the second job in order to meet his/her child support obligation?

Generally, second jobs are considered at the discretion of the court.  The court may consider “none, some, or all overtime income.”  If the payor takes on a second job after the child support is ordered, in order to pay said child support, there is a presumption that the second job should not be considered in a future child support order.

2) Is the income of a non-parent guardian (i.e. grandma, great-aunt) considered for calculation of child support?

It’s not supposed to be.

3) Does child support use the gross or net income?

Gross weekly income.

4) My spouse has 1/3 parenting time or less. How is child support calculated?

Run the guidelines as is, using this form.

5) My spouse and I share parenting time 50/50.  How is child support calculated?

Run the child support guidelines twice—first with one parent as recipient and second with other parent as recipient.  The difference in calculations shall be paid to the parent with the lower weekly support amount. 

6) My spouse has more than 1/3 of parenting time but less than 1/2.  How is child support calculated?

Run the guidelines first with one parent as recipient, and second as if the parties shared 50/50.  (See answer #5.)  The average of these figures shall be the child support amount. 

7) My spouse and I have two minor children.  One lives with me and one lives with my spouse.  How is child support calculated? 

Run the child support guidelines twice—first with one parent as recipient using the number of children in his/her care, and second with other parent as recipient using number of children in his/her care.  The difference in calculations shall be paid to the parent with the lower weekly support amount. 

8) I am responsible for 100% of my children’s college costs.  How does this impact child support?

The child support determination is at the discretion of the court, but the court shall consider the college contribution when setting the order.

9) How does the court consider the payment of extraordinary uninsured medical/dental expenses?

Again, these are considered at the discretion of the court on a case-by-case basis.

10) How long does child support last?

Generally, child support continues until the child reaches age 18.  However, if the child is still in college and primarily domiciled with one parent, it may extend until age 23.

As you can see, while much of child support is formulaic, plenty is determined at the discretion of the court.  For this reason, it can be very helpful to have an attorney!



How is Marital Property Divided?

Unlike child support, the division of marital property in Massachusetts is not a clear cut formula.  Yes, the court is guided by consistent factors, but different judges apply these factors with different emphases.  Here are the factors proscribed by the law:

1) Length of marriage;
2) Conduct of parties during marriage;
3) The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
4) The opportunity of each party for future acquisition of capital assets and income;
5) The amount and duration of alimony;
6) The present and future needs of the dependent children of the marriage;
7) The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates; and
8) The contribution of each of the parties as a homemaker to the family unit.

In the state of Massachusetts, property division is final.  Unlike alimony or child support, you cannot modify the division of property after the divorce.  Accordingly, it’s crucial that you meet with an attorney to be sure you are obtaining the best possible division of property during your divorce.  You want to be sure you have sufficient assets to survive economically once you are living without joint income.