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
GUEST POST: Are You Covering All Your Bases?
Ok, so it’s official. You’re getting a divorce. Whether you wanted the divorce, your spouse did, or you made the decision together, it’s going to happen. So now what? Well, if you’re reading this blog, chances are you’ve already got your legal representation lined up. You’ve got your finances in order. You know your rights. You have a good idea of what kind of settlement you’re going to get. You’re all set right? Cheryl Dillon is a Certified Life Coach by the International Coach Federation and has completed formal training in life coaching at The Institute For Professional Excellence in Coaching (iPEC).Through her signature ten-step divorce coaching process, Cheryl guides clients in bringing positive change to their lives. Learn more about how you can use divorce coaching in combination with Attorney Silber’s legal representation to get through divorce successfully. http://www.equitablemediation.com/divorce-and-emotions/divorce-coaching/
Are you missing something?
As Attorney Silber pointed out in a recent blog post, divorce involves more than just legality and finances. What most people forget to consider is the emotional aspect. Regardless of who wanted the divorce, chances are you’re experiencing a whirlwind of emotions you never expected. Hurt. Anger. Frustration. Loneliness. Fear. Anxiety. You name it – it’s probably there – lurking just under the surface, threatening to rear its ugly head at any given moment. So what can you do about all of these feelings you’re experiencing? Should you just tamp them down, ignore them and hope they’ll go away?
Toxic emotions can seriously hinder you.
Unfortunately, ignoring your feelings will not make them disappear. In fact, it will probably only make things worse. Emotions like anger and bitterness are toxic and they can take a toll on you – emotionally, physically and even financially. After all, how can you possibly make important decisions about your life and your future if you’re blinded by negative feelings?
How Divorce Coaching Can Help
Getting through the emotional side of divorce is one of the most difficult challenges you will have to face. Working with a divorce coach can help with weeding through the sea of emotions, overcoming fear and uncertainty, and learning how to focus on the future instead of the painful past. What you need is a plan. A clear, actionable plan to help you navigate through this difficult time, regain control of your life and come out on the other side with the clarity and confidence you need to face the bright future that is ahead of you.
You’ve done all your homework. You’ve taken care of the legal and financial concerns of your divorce. Divorce coaching can help you take care of that last, but equally as important factor – you.
Don’t Underestimate the Power of Emotion
As I like to say, there are three types of divorce: financial, legal, and emotional. Even if you are experiencing a divorce that feels primarily financial (i.e. a fight over the house or retirement assets), don’t underestimate the power of emotions. Oftentimes, the emotions are fueling the financial disagreement. My personal belief is that financial conflicts settle easier once the emotional conflicts have been addressed. For this reason, I think it is important for parties to address one another face to face even if there is a lot of anger and hostility. Many mediators and attorneys are scared to allow parties to face each other, because the initial direct communications can be heated, hostile, and ugly. However, the alternative, a stalemate, is worse. All the time, I see people unable to settle until they’ve addressed the opposing party directly. Sometimes, an angry spouse needs to scream and yell at their ex before they feel ready to settle. Sometimes, a hurt spouse needs to hear a direct apology or see some type of remorse first. And other times, a party just needs to hear, straight from the source, why that party is so insistent on a particular position. So, if you find yourself in a scenario where you just can’t seem to settle, ask yourself if you are getting sufficient face time with the opposing party. Have you had the opportunity to say everything you want to say? Ask everything you need to ask? And, if the opposing party seems unreasonable, consider whether they’ve had sufficient opportunity to address you directly. If not, you might never settle until you interact face to face—no matter how ugly those first interactions might be.
Can Court Worsen Your Relationship?
Previously on this blog, I’ve advocated for negotiation and mediation as a means of conflict resolution. I’ve explained that negotiation and mediation can be significantly less expensive than litigation and also quicker. A litigated divorce is subject to the schedule of our overburdened court system; a negotiation is subject only to the schedules of the two parties and two attorneys. (Occasionally, the negotiation may be delayed while parties wait on subpoenas or other discovery, but mostly negotiation occurs at the pace the parties desire.) This week, I was reminded of another reason why negotiation can be better than litigation for families. In negotiation, the parties can set the tone of their divorce. If they have young children and know they’ll be co-parenting for many years, they can elect to approach one another amicably and collaboratively. In an ideal negotiation, the joint problem-solving and brainstorming will remind the parties that they are able to work together despite the end of their marriage, and they will continue to communicate respectfully and productively into the future. In court, it is much harder to control the tone of the divorce. Although you might enter your first hearing with hopes of kindness, you will be opposing one another in front of the judge. In other words, you might say things you would never bring up in mediation in order to sway the judge. You might request things in discovery you wouldn’t ordinarily request in order to intimidate the other party into settling. You might deliberately protract the proceeding in order to remind the other party of your resources and determination to “win” in court. Certainly, there are cases where negotiation and mediation are not appropriate. However, before you jump into a litigated divorce, talk to your attorney about alternative dispute resolution and the possibility of divorcing in a way that allows you and your spouse to lay a foundation for working well together post-divorce.
The Uncontested Hearing
After two divorcing parties have reached a Separation Agreement and filed it with the court, the court will call them in for a 1A hearing, also known as an uncontested hearing. These hearings generally last about five minutes and are straightforward, yet a surprising number of my clients request that I accompany them. If you are prepared and confident, you probably do not need counsel for a 1A hearing. Here is what to expect: 1) The judge will begin by asking both parties to state their names for the record and be sworn in. 2) The judge will ask the parties their date of marriage, date of separation, and whether the marriage is irretrievably broken. The parties’ answers should reconcile with the information on the 1A divorce complaint and in the Separation Agreement. 3) The judge will ask each party if they signed the Agreement freely and voluntarily, believe it to be fair and reasonable, had the opportunity to consult counsel, and had the opportunity to review all financial records requested from the other party before signing the Agreement. 4) The judge may ask if the parties understand that they have requested the Agreement to either merge or to survive. 5) If the judge is satisfied with all the answers and the quality of the Separation Agreement, the judge will most likely enter the divorce at that moment. (Remember you cannot remarry until the nisi period is over!)
What Does It Mean to Have a No-Fault Divorce?
You may have heard horror stories about states without no-fault divorce. In these states, one had to show wrongdoing by a spouse in order to get divorced. The wrongdoing had to exceed a loss of love in the marriage. Instead, it was generally adultery, abandonment, felony, etc. The tricky part was that a party could assert a defense of recrimination, essentially, “Yes, I was adulterous but so were you.” If a court found both parties at fault, the action for divorce was defeated and both parties were stuck in the marriage. Thankfully, Massachusetts is a no-fault divorce state which means residents have the option of getting divorced without citing a reason beyond “irretrievable breakdown of the marriage.” Although most people pursue divorce on grounds of irretrievable breakdown, Massachusetts allows you to cite fault if you want. You should talk to your attorney if you’re inclined to cite a fault ground of divorce because these fault grounds of divorce may not help your case. In fact, they could hinder negotiations by infuriating the opposing party.
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.