How Does the Court Decide Custody in Divorces?

Custody is often a very emotionally-charged piece of divorce. Like many states in this country, Massachusetts uses a “best interests of the children” standard.

Generally speaking, in the absence of misconduct, the rights of both parents are held to be equal, and the court considers the “happiness and welfare of the children” to determine their custody. M.G.L. Ch. 208 Sec. 31. To determine “happiness and welfare of the children,” the court looks to how the present or past living conditions of the children impact the children’s physical, mental, moral, and emotional health.

With this knowledge, clients can negotiate their own custody arrangement outside of court. Once the parents have reached an agreement regarding custody, the court may enter an order which merges the provisions of the agreement related to the children. However, where there are specific findings that the parents’ agreement is not in the best interests of the children, the court may decline to accept the agreement.

Prepare for (Tax) Battle

Clients often want to battle over who can claim the children on their taxes. If you fight over the taxes without consulting a CPA, you may end up with a result that is neither in your best interests nor in your children’s best interests.

A CPA will illuminate for you the different tax credits and deductions available and let you know: what tax refund you can expect to receive while claiming your children, what tax refund you can expect to receive if not claiming your children, what tax refund your spouse can expect to receive while claiming your children, and tax refund your spouse can expect to receive if not claiming your children. How can you really negotiate if you don’t know these answers? You may be surprised to learn that some tax credits, like the education credit, are only available if your income is under a certain threshold. Therefore, you may not even be able to receive the credit if you claim your child. In that case, wouldn’t you agree that it’s in everyone’s best interests for your spouse to claim the child? Perhaps you and your spouse can further agree that part of the tax refund will then be used for specific expenses for your child.

Furthermore, if you and your spouse are in serious disagreement and take the issue of taxes before a judge, the judge won’t consider the topic without an analysis provided by the CPA. Do your homework and consult with your CPA. Your CPA’s guidance will illuminate your negotiations and also please the judge.

Post-Hearing Motions

Post-Hearing Motions

Sometimes clients are unhappy with a final judgment. Although it can be exceedingly difficult to overturn a judgment, you may be able to take action if you believe there is a mistake in a judgment or if you think the judgment is not supported by the evidence before the Court.

The Massachusetts Rules of Domestic Relations Procedure provide for several types of post-hearing motions:


  • Rule 52 addresses a Motion to Amend Findings of Fact
  • Rule 52 addresses a Motion to Amend Conclusions of Law
  • Rule 59 addresses a Motion for a New Trial
  • Rule 59(e) addresses a Motion to Amend Judgment
  • Rule 60 addresses a Motion for Relief from Judgment or Order.


Standing Order 2-99 details the procedure to file and serve one of these motions.


Post-hearing motions are tricky, high-stakes, and time-sensitive, so it is crucial that you consult with an attorney before pursuing one.

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 ( 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