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.
All posts by AlisonSilberEsq
Common Financial Statement Questions
The financial statement lists a number of sources of income and deductions that don’t apply to me. Should I leave those blank? How do I calculate my expenses? They vary monthly. Nothing has changed on my financial statement since the last hearing. Do I need to completely redo the financial statement for the upcoming hearing? I want to explain something on the financial statement that is not clear. Where do I do that? It’s easier for me to complete the financial statement by hand.
No, the court requires each field to be completed. If you do not have a particular source of income, deduction, or expense, enter “zero” instead of leaving the field blank.
You can approach the calculation a couple of ways. You can take the average based on expenses for the last three months. Or you can take the average over the last year. Just be sure to be consistent. If you take averages of the last three months for income, you should do the same for expenses. You may want to talk to an attorney because it might be helpful to calculate figures one way or another based on your request for alimony and child support.
No, most courts will accept the prior financial statement if you re-sign the final page on the date of the upcoming hearing. Be careful though—chances are a figure did change, such as your checking account balance or the balance of your 401k.
You can footnote a field, and then enter footnotes on the bottom of the page. Alternatively, you can include endnotes in an addendum. Be sure the footnotes/endnotes are on the copy submitted to the court.
The copy you submit to the court needs to be typed and on pink paper. It sounds silly, but providing a pink, typed copy will flag to the court that you are a serous litigant who knows what you are doing.
Why Can’t Your Mediator Be Your Lawyer?
In family law mediation, the mediator’s job is to facilitate resolution of the divorce. In other words, the mediator will manage and coax a conversation in which custody, child support, property disposition, alimony, health insurance, and taxes are settled. The mediator may reflect values, reframe issues, and ask pointed questions to reach settlement. However, there are several things a divorce mediator cannot do because it would be a conflict of interest. First, a mediator is not supposed to give either party legal counsel. For example, the mediator cannot tell Wife that she should file a Motion to Compel because Husband has been non-compliant with temporary child support, nor can the mediator advise Husband to not move in with his new girlfriend because it will impact his rights to receive alimony. It is a conflict of interest to give this type of guidance to one or both parties, while also mediating. Second, a mediator technically should not draft a Separation Agreement for the parties. Drafting a legal document, such as the Separation Agreement, is part of legal representation. If the mediator drafts it, who is she drafting it for? One party? The other? She can’t draft it for both of them because that would be a conflict of interest. You may find divorce mediators who are willing to smudge these lines, but be careful. The court might not accept a Separation Agreement “mediated” in that manner. To prevent trouble, hire an attorney in addition to your mediator. Your attorney can answer your legal questions and draft the Separation Agreement for you. That way, you don’t have to implicate your mediator in a conflict of interest. And, as a bonus, the court is more likely to accept a Separation Agreement where both parties had counsel. It might seem more expensive to hire a mediator and an attorney, but it saves you the cost of a Separation Agreement that breaks down before the court.
5 Easy Tips to Impress the Judge
Here are five easy ways to impress the judge, whether you appear pro se or with counsel. 1) All hearings are recorded so the court has a record. The recording technology only captures audible and clear voices. Speak with a strong and clear voice so the judge does not need to tell you to speak up. 2) At the start of a hearing, every person appearing before the court must introduce his or her name to the record. Be prepared to state your name, once again audibly and clearly. For example, “Good morning, your honor, Joe Smith.” 3) Address the judge as “Your honor.” For example, “Your honor, we’re here before you on a Complaint for Contempt filed September 1, 2013.” 4) Know your facts, and practice presenting them in a clear way. If you are worried you will freeze during the hearing, bring a legal pad with a cheat sheet of names and dates of birth for children, addresses for property, and other pertinent data. 5) Keep calm, and never interrupt the opposing party, opposing counsel, or the judge!
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; 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.
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.
Financial Statements in an Uncontested Divorce
Plenty of clients come through the Massachusetts probate courts with simple divorces—no children, short duration of marriage, and limited assets. Many of these clients are surprised to learn that signing and filing a separation agreement is not sufficient to acquire a divorce. You must complete a bit of paperwork first.
Namely, the court requires each party to complete a financial statement thoroughly and independently, and exchange the statements with one another. Then, the financial statements must be filed alongside the complaint for divorce. The rationale is that the court cannot be confident a separation agreement is fair and reasonable if the court does not know whether the parties made a full financial disclosure to one another.
Some clients come to me aggravated that they must disclose this personal information to the court. Other clients come to me frustrated because their spouse doesn’t want to provide the financial statement. It is important to remember the alternative to filing a financial statement: provide a financial statement and get an uncontested divorce OR refuse and begin the long, expensive road of litigation.
GUEST POST: Divorce Mediation: Parting Ways Peacefully
Going through a divorce can be a very stressful and challenging process. Both people in a couple may act in irrational ways because emotions sometimes take over. Things can get pretty messy fairly quickly when two people disagree on how the assets may be divided up or how child custody may be decided. It can often take a good amount of time to resolve these matters, especially if there is a lot of conflict. This may end up costing you more money in the long run.
A lot of people look at divorce as a failure. Your marriage didn’t work out. You failed. However, this is a very limited view of divorce. Just because you may be going your separate ways does not negate the time that you spent together. Instead, it’s better to look at a marriage as a learning experience. You learned what you needed to learn from each other, and you grew as people. Oftentimes, a couple needs to separate in order to continue growing as people. There’s nothing wrong with admitting that and accepting it.
Often, the source of conflict in a divorce comes from blaming the other person, resisting the actual divorce, or feelings of hurt, anger, or betrayal. If you can step back from those feelings, though, you may be able to see objectively that a divorce is the wisest course of action for everyone involved. When you have a divorce mediator, he or she may be able to help you to see this. Sometimes it takes an outside, objective person to help you to come to this realization.
When two people can come to terms with each other about a divorce, it can help them to come to an agreement in a more efficient way. Divorce is no longer the stressful experience you thought it would be. When you work together with a divorce mediator, you will find that you may agree to part ways peacefully. The mediator will remain impartial and help you to settle the terms of your divorce. Fortunately, many divorce attorneys also act as divorce mediators.
If a divorce mediator is used, both parties can acknowledge their emotions without delaying the legal process of the divorce. This may be the most peaceful way for both parties to survive the divorce process, which will be helpful for everyone involved.
Sara Crawford is a writer from Atlanta, Georgia. With a BA in English and an MFA in Creative Writing, she has recently been blogging for Hait, Eichelzer & Kuhn, a law firm in Georgia. http://www.he-law.com/blog.php