Infidelity and Divorce in Massachusetts

We are often asked what impact infidelity will have on a divorce in Massachusetts.  In reality, infidelity can impact a divorce in Massachusetts, but not as significantly as many spouses think.  Massachusetts is a state that recognizes no-fault divorce, which is the most common ground for filing divorce.  Since Massachusetts recognizes no-fault divorce, there are limited grounds in which a spouse can bring up the issue of infidelity.   The reality is that if spouses are at the point of divorce, it is not unlikely that one or both spouses have already moved on and entered the dating world again.  The main areas where infidelity can impact a divorce is with property division and parenting time.   When it comes to property division in Massachusetts, there are a number of factors the Probate and Family Court must consider in dividing the marital estate.  Those factors are outlined by Massachusetts General Laws chapter 208, section 34.  These factors are:   the length of the marriage, the conduct of the parties during the marriage, the age of each of the parties health of each of the parties station of each of the parties occupation of each of the parties, amount and sources of income of each of the parties vocational skills of each of the parties employability of each of the parties estate of each of the parties liabilities of each of the parties needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive the present and future needs of the dependent children of the marriage. the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.     As you can see, infidelity is not one of these factors.  However, infidelity falls under the “conduct” factor.  Thus, when determining property division in a divorce, the Probate and Family Court must consider 17 different factors, and only one part of these 17 factors will include infidelity.

  However, realistically, if each Probate and Family Court judge heard about every instance of infidelity, they would never be able to leave the bench.  Each judge would be on the bench 24 hours a day, 7 days a week, 365 days a year.  Since that isn’t practical, the court limits arguments regarding infidelity are strictly limited to any dissipation of marital assets on the extramarital relationship.  That means if a spouse spends marital funds and marital assets on their extramarital relationship, a judge can consider that a factor in property division.  However, realistically, judges will typically only consider this argument if a substantial amount of marital funds were spent on the relationship.  If money was spent on an occasional date here and there, a judge isn’t going to consider that.  However, if a spouse went on vacation with their new significant other, that is something a judge may consider in property division.   Therefore, infidelity can technically be considered in property division, but it is very narrowly construed by Probate and Family Court judges, so they are not on the bench all day, every day.   Another topic where infidelity can be an issue in a divorce is with custody and parenting time.  When spouses are working out a parenting plan, it is not uncommon to restrict the parties from introducing the children to new significant others.  Thus, if one or both parents are already dating while the divorce is pending, they can agree to not introduce significant others to the children until it is a serious relationship.  Oftentimes, this means putting a time restriction before parents can introduce significant others to the children.  This can be a few months, or even up to a year.   Also, if a parent is already in a serious relationship where he/she has already moved in with their new significant other, or is about to move in with their new significant other, sometimes the other parent can request background information on that significant other, and can sometimes even go so far as request for the court to perform a background check.  However, the court is careful on the extent that a parent can look into this person’s background.  Oftentimes the court will limit the background information to whether the new significant other has a criminal background and/or if the new significant other has any prior involvement with the Department of Children and Families.  Having a new live-in significant other does not give the other parent carte blanche to do an unlimited background investigation.     Read the full article

Do I Have To Give My Spouse Part Of My Business In Our Divorce?

When spouses are going through a divorce, one thing that always must be addressed is property division.  However, when one or both spouses own a business, or even have an interest in a business, property division can be much more complicated.  A common question spouses ask is: Do I have to give my spouse part of my business in our divorce?  In Massachusetts, the short answer is No, but the answer isn’t that simple.   Under the property division statute in Massachusetts, Massachusetts General Laws chapter 208, section 34, the Probate and Family Court must consider the following factors in dividing the marital estate:   length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit     Also, the appellate courts have routinely stated that property division includes any assets of each spouse, regardless of whether the assets are titled in only one spouse’s name, in both spouse’s name, or in one spouse’s name jointly with another individual.  This typically means that a business interest, even if it is only in one spouse’s name, is a marital asset that will be divided one way or another.   However, the next step is to determine how much that business (or the spouse’s business interest) is worth.  That almost always requires a business appraisal by a financial expert qualified to conduct business appraisals for a divorce.  Many spouses think that this is something their own CPA can do, but oftentimes CPA’s will not qualify as an expert for business appraisal purposes in the eyes of the Probate and Family Court.  Thus, the spouses must either each hire a business appraiser to conduct an appraisal of the business, or the spouses can agree to hire one business appraiser to conduct a joint appraiser.   Once the business appraiser conducts his analysis, he will give the spouses and their attorneys two numbers: 1) the value of the business (or spouse’s business interest); and 2) what is a “reasonable compensation” for that business owner spouse for purposes of calculating child support and/or alimony.  With these two numbers in hand, spouses and their attorneys then have to figure how what, if anything, is the non-business owner spouse entitled to from the value of the business.   This does not mean that the non-business owner spouse will actually obtain an ownership interest in the business.  Rather, the business owner spouse will then have to pay the non-business owner spouse a certain dollar amount for property division based upon the value of the business.  Depending on how much is left in the marital estate (above and beyond the value of the business) this can sometimes be done with a trade off of assets where the non-business owner spouse receives a greater share of the other assets.  However, when there are not enough assets for a trade off, then the business owner spouse typically is given time to essentially “buy out” the non-business owner spouse from the value of the business.  This is typically done in a weekly or monthly installment payments over period of time.  These payments are not considered alimony, but rather property division payments.   The amount the non-business owner spouse receives from the business depends on the factors outlined in Massachusetts General Laws chapter 208, section 34.  The non-business owner spouse is not automatically entitled to 50% of the value of the business.  Depending on the statutory factors, the non-business owner spouse may receive less than 50% of the value of the business.   Thus, in Massachusetts, a business owner spouse does not have to actually give the non-business owner spouse a portion of the business, but the non-business owner spouse will likely be entitled to a monetary compensation based upon the value of the business.     Read the full article

The Differences Between and Last Will and Testament and a Trust

No one wants to think about dying, but it is something everyone must face.  It is important to have an estate plan in place when you pass away.  There are some common documents that everyone should have as part of their estate plan.  This includes a Last Will and Testament, a Power of Attorney, a Health Care Proxy, and a Living Will.  Some people also choose to have a Trust as part of their estate plan as well.  However, many people often confuse a trust and a will.  Do you know the differences?   Last Will and Testament

A Last Will and Testament is a document everyone should have.  This document outlines how a person wants their assets divided after he/she passes away.  With a Will, you remain in control of how your property will be divided.  In a Will a person (known as a testator or testatrix) lists who will inherit his/her property after he/she dies.  It is not uncommon to leave property to your spouse and/or your children.  However you can also include “specific bequests” to give certain pieces of property, such as a specific piece of jewelry, a baseball card collection, and so on, to a specific person.  Otherwise, a Will typically just names certain people, or certain groups of people (such as your children or your siblings) to inherit your property.   In  a Will you also name a Personal Representative (formally known as an Executor or Executrix) to carry out your wishes under your Will.  This can be anyone you choose from a relative, friend, or an attorney, to administer your Will.   If you still have minor children, you can also nominate a guardian, who is someone who will care for your children after you pass away.   With a Will, it clearly states what your wishes are, and the Personal Representative is required to carry out those wishes on your behalf.   If you do not have a Will, then you are considered to die “intestate” which means you did not have a Will at the time you passed away.  In that case, the law dictates how your property will be distributed after your death.   In these circumstances, your property will be distributed to the following people, in this order:   Your spouse; Your children (if your spouse is deceased or if you don’t have a spouse); Your parents (if you don’t have a spouse and/or children); and then Your siblings.   The advantage to a Will is you can circumvent this order and decide who will inherit your property.   If you have a Will, you may or may not be able to avoid the probate process, as well.  Depending on what assets you have, the Will may be sufficient to have your property divided amongst your heirs.  However, even if you do have a Will, and you do have to go through the probate process, your Will will outline how your property will be divided amongst your heirs, and you can avoid the process of intestate distribution.     Trusts

  Trusts are common, but not as common as a Will.  People often confuse Wills and Trusts.  A Will is a document everyone should have, so they do not die intestate.  A Trust, however, is an optional document that not everyone has.  With a Trust, you can put any property you want in the Trust, such as real estate, investments, life insurance, and more, to be held in Trust for the benefit of any beneficiaries of the Trust.   A person who creates a Trust is known as a “donor” or “grantor,” unlike a Will, where that person is known as the “testator” or “testatrix”.  A Trust can be created by a donor or grantor while he/she is still alive, and the Trust can begin operating immediately.   Then the person who administers the Trust is known as a “trustee.”  Similar to a Personal Representative of a Will, a trustee carries out the terms of the Trust, but he/she is also responsible for managing any assets or property held by the Trust.  Depending on the type of Trust created, the grantor/donor can also be the trustee.   Under a Trust, there are beneficiaries.  These are like heirs under a will, but these people will have an interest in the Trust as soon as the Trust is created.  Beneficiaries do not have to wait for someone to die to acquire their interest in the Trust.  It is not uncommon for the donor/grantor to also be a beneficiary under a Trust for so long as the donor/grantor is alive.   Trusts can be revocable and irrevocable.  For a revocable Trust, this means that the grantor/donor can modify or terminate the Trust for so long as he/she is alive.  Thereafter, the trustee and/or the beneficiaries can modify or terminate the Trust.  For irrevocable Trusts, the Trusts are much more restrictive and cannot necessarily be modified or terminated after they are created.  Depending on what a donor/grantor needs a Trust for, the Trust may be revocable or irrevocable.   There are many reasons to create a Trust.  One most common reason is that any property held by a Trust does not go through the probate process after someone dies.  In the eyes of the law, at Trust is considered its own human being, and thus the Trust owns any property in the Trust, and not the grantor/donor or the beneficiaries.  This may seem like splitting hairs, but the benefit is that since an individual does not own the property—the Trust owns the property-- then the property does not have to be divided through the probate process.  This also means that any property held in a Trust passes outside of someone’s Will.  Therefore, anyone who is a beneficiary of a Trust does not have to worry about including the property from a Trust in his/her Will.   Another reason to create a Trust is for asset protection.  Since the law considers a Trust to be its own human being, if a person is sued for money or damages, the Plaintiff in the lawsuit cannot access any property held in a Trust for the money or damages.  The most common example is a slip and fall on a piece of property.  If that property is held in Trust, then the Plaintiff can only receive damages from the property held in the Trust.  In this circumstance, the Trust would be the Defendant in the lawsuit, and not any individuals.  Oftentimes the only assets in a Trust in this circumstance are the real estate and small bank account. This means that the Plaintiff cannot touch a person’s assets not held in Trust.   On the reverse side, if someone is being sued individually, and that person also has a Trust, the Plaintiff can only access property held in the Defendant’s name individually, and the Plaintiff will not be able to access any property in the Trust for any damages.  Trusts can be wonderful tools for people who have many assets that they want to segregate and protect from any potential liability or law suits.   Trusts can also be created for many other reasons.  This includes providing for a disabled family member, Medicaid planning, and to establish and maintain life insurance.  A Trust does not necessarily have to be established by someone who is very wealthy that wants to manage their money for themselves and their family for generations to come.   Another benefit to a Trust, is the donor/grantor can control when beneficiaries will acquire money or property in a Trust.  This is especially helpful when beneficiaries are children who may squander the money or assets held in the Trust if they receive it earlier on in life. With a Trust, the grantor/donor can outline at what age the beneficiaries will receive the money or property, so they are older and more capable of managing these assets responsibly.  It is not uncommon for a grantor to outline that younger beneficiaries will acquire an interest in the property in the Trust in installments, such as at 25 years old, 30 years old, and then at 35 or 40 years old.   A Trust is an optional document, but it can be very useful to have depending on how you want to manage your assets and money.  A Trust is great document for giving some of your property to your beneficiaries while you are still alive, so you do not have to worry about the beneficiaries going through the probate process to acquire the property or assets.     Wills and Trusts are very different types of documents, but they are also very helpful documents to have in your estate plan.  Trusts are not for everyone, but everyone should have a Will.  Understanding the differences between Wills and Trusts can be confusing, and that is why it is important to have a knowledgeable estate planning attorney help you through creating your estate plan.  A knowledgeable estate planning attorney will speak with you to understand what you want as part of your estate plan, how you want to distribute your assets, and who you want your assets to go to.  After speaking with an estate planning attorney, they can recommend how to best accomplish your goals, whether that is only through a Will or adding a Trust to your estate plan as well. Read the full article

Does My Spouse Have an Interest in My Business When We Divorce?

In a divorce, money can be one of the biggest issues spouses fight over.  However, when one (or both) spouses own a business, this can be an even more complicated (and sometimes uglier) fight.  A common question business owners ask when they are going through a divorce is whether their spouse has an interest in the business.  The short answer is yes, but it’s not as straightforward as you think.   Under Massachusetts law, all assets owned by spouses, regardless of whether or not they are joint assets, are marital assets.  This can include a family owned business, even if only one spouse has an interest in that business.  That means the business is a marital asset that is subject to division in equitable distribution.  However, that doesn’t necessarily mean the non-business owner spouse will end up owning the business or having a financial stake in the business through the divorce.  Massachusetts General Laws chapter 208, section 34 outlines factors the Probate and Family Court must consider in the division of marital assets.  Those factors are:   Length of marriage.   Conduct of the respective parties during the marriage.   Ages of the respective parties.   Health of the respective parties.   Station of the respective parties.   Occupations of the respective parties.   Amount and sources of income of the respective parties.   Vocational skills of the respective parties.   Employability of the respective parties.   Estates of the respective parties.   Liabilities of the respective parties.   Needs of the respective parties.   Current needs of the minor children of the marriage.   Future needs of the minor children of the marriage.   Opportunities available to the respective parties for future acquisition of capital.   Opportunities available to the respective parties for future acquisition of income.   Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.   Contributions of Husband and Wife as homemaker.   These factors must be considered as a whole.  However, one factor that often is given a little more weight on this issue is the “Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.”  Here, the court looks at what the non-business owner spouse contributed toward the business.  Did they help out at the business with any work such as bookkeeping or administrative support?  Did they help with any business dinners or important business meetings and events?  What a spouse contributed towards the business can be an important factor.   However, another important factor is “Contributions of Husband and Wife as homemaker.”  Did the non-business owner spouse take care of the children and the household so the business owner spouse could have more time to manage the business?  If the non-business owners spouse did help in this capacity, this can be another important factor in what, if anything, the non-business owner spouse is entitled to from the business.   The Probate and Family Court will also consider when the business owner spouse acquired an interest in the business.  Was it several years before the couple was married, and the business owner spouse put in their own work before the marriage to make the business profitable? Or was the business acquired only months before the divorce was filed?  These are also important factors.   As if analyzing the Section 34 factors isn’t enough, the Probate and Family Court will also need to know what the business is worth.  This often requires a business appraisal by a financial expert certified to appraise businesses.  These appraisals can be costly, but the return can be potentially significant.  In doing a business appraisal, the expert commonly puts a monetary value on the business owner spouse’s interest in the business, but will also set a salary for which support can be calculated.  This is where things can get confusing.   Although a business owner spouse is drawing an income from that business, it may not be the “correct” income based upon business appraisal standards.  Some common issues that the appraiser must consider are: 1) is the business owner using the business to pay his/her own personal expenses; 2) is the business owner working a normal number of hours; 3) does someone else in the business (oftentimes a relative) have the control to manipulate the spouse’s income.  This all has to be factored into valuing the business and also coming up with the business owner’s appropriate income.   Once this is all considered, then it’s time to decide what, if anything, the non-business owner spouse is entitled to from the business.  Oftentimes, the salary that has been calculated by the business appraiser is used to calculate child support and/or alimony.  After that, once a value is set for the business owner spouse’s interest in the business, the court determines what the non-business owner spouse is entitled to.  If the Court determines that the non-business owner spouse is entitled to share a of the business, this is usually accomplished not by the spouse actually acquiring an ownership interest in the business, but by receiving a payout by the business owner spouse.  Sometimes this is made in the form of one lump-sum payment, and other times it is made in installment payments over time.  Either, way, the non-business owner spouse is monetarily compensated for their share in the business.   Determining a non-business owner spouse’s interest in the other spouse’s business can be complex and confusing. It is important to ensure you have a knowledgeable divorce attorney and a business appraiser to guide you through this process, regardless of which side you are on. Read the full article

Does My Spouse Have an Interest in My Business When We Divorce?

In a divorce, money can be one of the biggest issues spouses fight over.  However, when one (or both) spouses own a business, this can be an even more complicated (and sometimes uglier) fight.  A common question business owners ask when they are going through a divorce is whether their spouse has an interest in the business.  The short answer is yes, but it’s not as straightforward as you think.   Under Massachusetts law, all assets owned by spouses, regardless of whether or not they are joint assets, are marital assets.  This can include a family owned business, even if only one spouse has an interest in that business.  That means the business is a marital asset that is subject to division in equitable distribution.  However, that doesn’t necessarily mean the non-business owner spouse will end up owning the business or having a financial stake in the business through the divorce.  Massachusetts General Laws chapter 208, section 34 outlines factors the Probate and Family Court must consider in the division of marital assets.  Those factors are:   Length of marriage.   Conduct of the respective parties during the marriage.   Ages of the respective parties.   Health of the respective parties.   Station of the respective parties.   Occupations of the respective parties.   Amount and sources of income of the respective parties.   Vocational skills of the respective parties.   Employability of the respective parties.   Estates of the respective parties.   Liabilities of the respective parties.   Needs of the respective parties.   Current needs of the minor children of the marriage.   Future needs of the minor children of the marriage.   Opportunities available to the respective parties for future acquisition of capital.   Opportunities available to the respective parties for future acquisition of income.   Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.   Contributions of Husband and Wife as homemaker.   These factors must be considered as a whole.  However, one factor that often is given a little more weight on this issue is the “Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.”  Here, the court looks at what the non-business owner spouse contributed toward the business.  Did they help out at the business with any work such as bookkeeping or administrative support?  Did they help with any business dinners or important business meetings and events?  What a spouse contributed towards the business can be an important factor.   However, another important factor is “Contributions of Husband and Wife as homemaker.”  Did the non-business owner spouse take care of the children and the household so the business owner spouse could have more time to manage the business?  If the non-business owners spouse did help in this capacity, this can be another important factor in what, if anything, the non-business owner spouse is entitled to from the business.   The Probate and Family Court will also consider when the business owner spouse acquired an interest in the business.  Was it several years before the couple was married, and the business owner spouse put in their own work before the marriage to make the business profitable? Or was the business acquired only months before the divorce was filed?  These are also important factors.   As if analyzing the Section 34 factors isn’t enough, the Probate and Family Court will also need to know what the business is worth.  This often requires a business appraisal by a financial expert certified to appraise businesses.  These appraisals can be costly, but the return can be potentially significant.  In doing a business appraisal, the expert commonly puts a monetary value on the business owner spouse’s interest in the business, but will also set a salary for which support can be calculated.  This is where things can get confusing.   Although a business owner spouse is drawing an income from that business, it may not be the “correct” income based upon business appraisal standards.  Some common issues that the appraiser must consider are: 1) is the business owner using the business to pay his/her own personal expenses; 2) is the business owner working a normal number of hours; 3) does someone else in the business (oftentimes a relative) have the control to manipulate the spouse’s income.  This all has to be factored into valuing the business and also coming up with the business owner’s appropriate income.   Once this is all considered, then it’s time to decide what, if anything, the non-business owner spouse is entitled to from the business.  Oftentimes, the salary that has been calculated by the business appraiser is used to calculate child support and/or alimony.  After that, once a value is set for the business owner spouse’s interest in the business, the court determines what the non-business owner spouse is entitled to.  If the Court determines that the non-business owner spouse is entitled to share a of the business, this is usually accomplished not by the spouse actually acquiring an ownership interest in the business, but by receiving a payout by the business owner spouse.  Sometimes this is made in the form of one lump-sum payment, and other times it is made in installment payments over time.  Either, way, the non-business owner spouse is monetarily compensated for their share in the business.   Determining a non-business owner spouse’s interest in the other spouse’s business can be complex and confusing. It is important to ensure you have a knowledgeable divorce attorney and a business appraiser to guide you through this process, regardless of which side you are on. Read the full article

Financial Planning For and During a Divorce

A divorce brings about many changes in a person’s life.  One of the most significant changes is the financial impact of a divorce.  Spouses go from having a combined household with (usually) two separate incomes, to living apart, and supporting themselves on their own.  If you are contemplating a divorce, or have already filed for divorce, there are different actions you can take to plan for your own financial future after a divorce.   Create a Budget:   Review your household expenses to see what your weekly/monthly expenses come out to.  In addition to including the usual expenses (i.e. mortgage/rent, utilities, heat, cable TV, telephone, groceries, clothing, etc.), don’t forget to include other typical expenses, such as uninsured medical expenses, motor vehicle expenses, child care, vacation and entertainment, education costs for yourself and your children. Once you have your budget, look at what your income is, and what it is likely to be at the end of the divorce.  Don’t forget to factor in any alimony and/or child support that you may be paying or receiving. Based upon the budget you create, you can figure out whether you need to make any cuts in the budget, where you can.  Also, if based upon your budget, you can determine what assets may be best for you to walk away with in the divorce, once marital assets are divided. Determine What Your Income Will Be: As part of your budget, you will want to consider what your income will be after the divorce.  If you are working, you will know what your income will be from work.  However, you will also want to consider if you will be receiving or paying child support and/or alimony. In Massachusetts, a child support order can run until children are 23 years old, provided they attend college.  Spouses must take this into consideration when factoring their income.  Massachusetts has Child Support Guidelines for spouses to calculate the child support order based on their respective incomes.  Generally, the first $250,000 of the parties combined gross income is used to calculate child support. As for alimony, if the parties have children, and have a combined gross income of over $250,000, then there is a chance that the lesser earning spouse could receive alimony.  There are exceptions to this $250,000 gross income, where a spouse may receive alimony and the parties do not have a combined gross income of $250,000, but these are highly fact-specific circumstances.  If there are no children of the marriage, then there is no minimum income used to calculate alimony.  However, that doesn’t guarantee that alimony will be awarded.  There are many factors considered in awarding alimony, as outlined in M.G.L. c. 208 §53.  Each spouse should consult their respective attorney to determine whether there will be an alimony order in their case. If alimony is awarded in a case, it will be based upon a formula developed when the Massachusetts Alimony Reform Act of 2011 went into effect.  There 4 types of alimony in Massachusetts: 1) General Term Alimony; 2) Rehabilitative Alimony; 3) Reimbursement Alimony; and 4) Transitional Alimony.  Depending on the specific facts of your circumstances, any one of these types of alimony could be awarded in your divorce.  The amount and duration of the alimony will depend on the type of alimony awarded.   Determine What Assets You Will Receive in the Divorce: As part of a divorce, all marital assets are divided.  This includes all bank accounts, investment accounts, retirement accounts, stocks, future inheritance, real estate, business interests, vehicles, personal property, and any other property owned by the spouses.  When negotiating the division of assets, consider your income and your budget.  Is it more beneficial to you to receive liquid assets, such as investment accounts, or is it better for you to receive real estate?  The answer to this question is always fact-specific, but you should consider your circumstances, and what would meet your needs most once the divorce is finalized. Retaining real estate can give some continuity, particularly if you are retaining the marital home for the children to continue living in.  However, real estate doesn’t make cash available to you immediately.  The real estate can appreciate or depreciate, and you will not get your equity out of the real estate until it is sold.  Whereas, liquid accounts will give you access to money fairly quickly. Each person should also consider the tax consequences of retaining each asset, as there usually are tax benefits or tax penalties for retaining or transferring certain assets. There is no “one size fits all” answer to this question.  Each person should review their financial circumstances to determine what works best for himself/herself.   Start Your Financial Independence from Your Spouse: Towards the beginning of your divorce, you will want to begin your financial independence from your spouse.  Massachusetts has a prohibition on depleting, transferring, or encumbering marital assets, pursuant to Supplemental Probate and Family Court Rule 411, so you cannot unilaterally deplete, cash out, or transfer any assets.  However, you can begin your financial independence by opening your own individual bank account.  Once the account is opened, you can begin depositing your income into this account, and using this account for your regular living expenses. You may also want to open a credit card account without your spouse as a joint user.  That way you begin to build credit in your name alone. By taking these steps, you begin to segregate your finances from your spouse, and begin to understand how to manage your money without your spouse’s involvement.   Consult a Financial Advisor Depending on the total value of the marital estate, and each spouse’s gross incomes, it may be wise to retain a Financial Advisor, to assist you through the divorce process and give you guidance as to a budget, the tax consequences of divorce, and also what assets you should retain.  There are financial advisors who specialize in divorce, known as Certified Divorce Financial Analysts, who can guide you through this process.   Read the full article

Previously, Lintz, now a hearing loss consultant and advocate, lived in a townhouse on the Upper East Side, had a home in the Hamptons, and travelled often with her family. While she thought she was wealthy, her money was considered part of the marital estate, and couldn’t be used to pay for legal fees

What Are the Differences Between an ARC Attorney, Guardian ad Litem and Parenting Coordinator?

In high conflict custody cases in Massachusetts, there are many experts that can become involved in your case to help with the conflict and pending issues.  The most common experts are Guardians ad Litem, Parenting Coordinators, and ARC Attorneys.  However, many parents often confuse these roles.  This article will explain what each role is and the difference between these types of experts.     Guardian ad Litem   A Guardian ad Litem (also known as a GAL) is one of the most common experts in a high conflict custody case.  A GAL is typically appointed by the court to investigate the pending issues in the case.  A Guardian ad Litem is either a mental health professional that works with divorced or separated families, or a Family Law attorney.   Oftentimes, the GAL is asked to investigate the facts of the case and then make recommendations for legal custody, physical custody, and parenting time.  A GAL is oftentimes also charged with investigating other issues that arise such as substance abuse, domestic violence, and child abuse.  Ultimately, the GAL will speak with the parents, children, and other important people (such as doctors, teachers, extended family and family friends) and then make a recommendation to the court through a written report.   The GAL is required to make recommendations based upon the best interests of the children.  Sometimes this is in line with what children ask for in a parenting plan, but it is not always in line with what the children want.  A GAL is not bound to recommend what the children are requesting for a parenting plan.  A GAL can be called to testify at trial, and a GAL report can often be a compelling factor in settling a high conflict custody case.   For most cases, the parents will be expected to share the cost of a Guardian ad Litem, which can be costly (anywhere from $8,000 to $20,000 on average).  For parents who cannot afford a GAL, the court will either appoint a GAL and have the Commonwealth pay for the GAL’s services, or appoint a Probation Officer from the court to conduct a similar investigation as a GAL would conduct.     ARC Attorney   An ARC attorney is very different from a Guardian ad Litem.  ARC stands for “Attorneys Representing Children.”  An ARC attorney is appointed by the court to represent the children.  This is an attorney who specializes in Family Law, and particularly high conflict custody cases.  ARC attorneys are free and volunteer their time in this capacity.   Unlike a GAL, an ARC attorney does not file a report with the court, nor does he/she conduct an investigation.  Rather, ARC attorneys are attorneys for the children and are required to participate in the case just like lawyers for either parent.  This means that the ARC attorney cannot testify at trial.   Like attorneys for parents, an ARC attorney is ethically bound to represent and advocate the children’s interests and wishes.  That means the ARC attorney is duty bound to advocate what the children want for a parenting plan, even if the ARC attorney believes that the parenting plan the children are proposing is not in their best interests.  If children have differing opinions as to the parenting plan, more than one ARC attorney can be appointed in a case, so each child has their own attorney.   ARC Attorneys are not appointed in every case, and are appointed at the discretion of the judge.   Parenting Coordinators   A Parenting Coordinator is a person who is appointed to help parents reduce conflict in high conflict custody cases.  A Parenting Coordinator, like a GAL, is either a mental health professional that works with divorced or separated families, or a Family Law attorney.  In MA, Parenting Coordinators must go through extensive training to become qualified to serve as a PC.  A PC works with parents to resolve ongoing disputes.   Ideally, the Parenting Coordinator works with parents so that parents reach their own agreements to resolve any dispute, but the Parenting Coordinator also has the authority to rule on a dispute if parents can’t agree.  Ideally, a Parenting Coordinator is engaged to reduce the overall conflict between parents.   The disputes that parenting coordinators can address are wide and varied.  It can range from adjusting pick up and drop off times for parenting time, to what camp a child will attend in the summer, to whether a parent is packing appropriate clothing for parenting time with the other parent.  Standing Order 1-17, which governs Parenting Coordinators defines the scope of a Parenting Coordinator’s duties as:   Assist the parties in amicably resolving disputes and in reaching agreements about the implementation of and compliance with the order regarding the child or children in their care including, but not limited to, the following types of issues: (i) minor changes or clarifications of the existing parenting plan; (ii) exchanges of the child or children including date, time, place, means of and responsibilities for transportation; (iii) education or daycare including school choice, tutoring, summer school, before and after school care, participation in special education testing and programs, or other educational decisions; (iv) enrichment and extracurricular activities including camps and jobs; (v) the child or children’s travel and passport arrangements; (vi) clothing, equipment, and personal possessions of the child or children; (vii) means of communication by a party with the child or children when they are not in that party’s care; (viii) role of and contact with significant others and extended families; (ix) psychotherapy or other mental health care including substance abuse or mental health assessment or counseling for the child or children; (x) psychological testing or other assessments of the children; and (xi) religious observances and education.   Parenting Coordinators essentially have the authority of a quasi-judge.  A decision by a Parenting Coordinator can be binding upon parents unless and until a parent challenges the Parenting Coordinator’s decision in court.   Parenting Coordinators are often appointed towards the end of a case so that parents can continue to address conflict and issues despite the fact that the litigation is over.   Conclusion   There are many different experts that can become involved in a high conflict custody case.  Guardians ad Litem, ARC attorneys, and Parenting Coordinators are the most popular.   Attorney Talia Simonds from Amaral & Associates, P.C. serves as both an ARC Attorney and Parenting Coordinator, and is very knowledgeable of all of these roles.  If you have questions about a high conflict custody case, call us today. 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A wave of “gray divorce” threatens to wash away financial security for people who find themselves suddenly single late in life. “A rising divorce rate is becoming a very consistent trend with the baby boomer generation,” said Joslin Davis, academy president. It notes that the rate of gray divorce has

FIT Divorce Mediation

Having handled divorce cases of all types for over 25 years, divorce mediation is the only way to get divorced! It is thorough, inexpensive and fast. Find out about our FIT Divorce Program now.

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Can I Date While My Divorce Is Pending?

It is not uncommon once a marriage is over for spouses to start looking at the dating scene again, even while their divorce is still pending.  One of the most common questions divorce attorneys are asked is whether a spouse can date while their divorce is still pending.  Well the short answer is: Yes!   However, the longer answer requires considering the financial aspect of a divorce as well as custody and parenting issues.  On the financial side of a divorce, there are two primary parts of a divorce: property division and support.  In Massachusetts, the Probate and Family Court must consider the factors outlined in General Laws Chapter 208, Section 34 for property division.  They are:   Length of marriage.   Conduct of the respective parties during the marriage.   Ages of the respective parties.   Health of the respective parties.   Station of the respective parties.   Occupations of the respective parties.   Amount and sources of income of the respective parties.   Vocational skills of the respective parties.   Employability of the respective parties.   Estates of the respective parties.   Liabilities of the respective parties.   Needs of the respective parties.   Current needs of the minor children of the marriage.   Future needs of the minor children of the marriage.   Opportunities available to the respective parties for future acquisition of capital.   Opportunities available to the respective parties for future acquisition of income.   Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.   Contributions of Husband and Wife as homemaker.   It is the second factor, Conduct of the respective parties during the marriage that is most important when it comes to dating while a divorce is still pending.  If a spouse who is still going through a divorce spends significant amount of money on their new love interest, then the Probate and Family Court can construe that as a dissipation of marital assets, and award the other spouse a greater share of the marital assets because of this.  Otherwise, the Probate and Family Court will give little consideration to dating when dividing marital assets.   The other financial issue is alimony.  For a spouse who is receiving alimony, alimony can be “suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months”.  G.L. c. 208 §49(d).  So if a spouse who is receiving alimony moves in with their significant other while the divorce is pending (or even after the divorce is finalized), then the alimony can be suspended, reduced or terminated.   The other issues that arise with a spouse who is dating during a divorce relates to custody and parenting issues.  If a spouse is dating a new significant other, it is not uncommon to address in the divorce whether the children will meet this significant other, and whether the spouse/parent can move in with this significant other without any impact on the parenting plan.  Also, if a spouse’s significant other has a criminal past, history of substance abuse, or prior involvement with DCF, the significant other’s character can be scrutinized in the divorce in determining whether this is an appropriate person for the children to be exposed to.  This can all impact the custody and parenting plan of a family.   Whether a spouse should date after separating and while a divorce is pending is a very personal and individualized decision.   There is no law in Massachusetts that prevents spouses from dating after separating or divorcing, but if a spouse does choose to date, he/she should be mindful of how it can impact his/her divorce. Read the full article

Making a Will

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Sound Reasons Why You Should Mediate Your Divorce.

. I have been a divorce attorney for over 25 years and a divorce mediator for almost as long. When a potential client asks me whether they should mediate their divorce or whether they should just get their own attorney and file for a contested divorce, I tell them the following. A contested divorce can last well over a year.  In fact, in Massachusetts, the tracking order assigned to your contested divorce is for fourteen (14) months. Which means that the life span of a contested divorce can be as much as 14 months. During this time frame, the parties will exchange financial documents, attend numerous hearings on temporary orders in court, have a pre-trial hearing followed up by status conferences and then a trial if your case does not settle. All of this discovery and all of the court hearings and meetings or phone call with your attorney will cost you money in legal fees both to you and your spouse. A divorce attorney can make 10-20 times more in legal fees on a contested case then they can on a mediated case. Legal retainers range from $ 5,000 to $ 20,000, per spouse, for an initial retainer, depending on what is in dispute and the nature of your assets.  Whereas, divorce mediation can cost each spouse as little as a $ 1,000 per spouse plus the filing fee which is $ 215 here in Massachusetts. At Amaral & Associates, P.C., for example, we have program called FIT Divorce Mediation at www.amarallaw.com .  FIT stands for fast, inexpensive and thorough. The cost per spouse is $ 999.00 plus the filing fee. This flat fee includes three (3) hours of face time with your mediator which is all that is usually needed. In addition, this fee includes the preparation of your divorce agreement, the divorce filing and the preparation of your respective financial statements. We will then file the agreement with the court for you and a divorce hearing date will be assigned to you in usually six (6) to (8) weeks. Then you and your spouse will appear together for a brief five (5) minute hearing before a judge. It’s that easy and a lot faster than 14 months and a hell of lot less expensive. Moreover, the agreement is just as thorough as though you went through a contested divorce. Each divorce agreement consists of the number of years that your mediator has been practicing and after each year, the agreements get refined. The same agreements are used on contested case for all issues, including, but not limited to, alimony, custody, child support, division of real and personal property, parenting plans, medical and life insurance, education, taxes and exemption issues and payment of debt. The mediation process is also very amicable. This is important if you would like to preserve what is still left in your relationship with your spouse. In addition, it is less burdensome on your children. Because when you get divorced from each other, you are not divorcing your family, only your spouse. The father is still the father, the mother is still the mother, the children are still your children, and the family is still your family. For more information on divorce mediation, give us a call at (617) 539-1010 or email me at [email protected] . Read the full article

Alimony & Alimony Reform

Massachusetts laws governing alimony in the Boston area are not well understood by the general public, and the enactment of the Massachusetts Alimony Reform Act in 2011 brought major changes to these laws for the first time since the 1970s. If alimony — sometimes called spousal support or maintenance — may be awarded in your divorce, or you need to know if you can obtain an alimony modification (or termination), our lawyers will analyze your situation and provide clear, accurate legal guidance.

Should You Expect To Pay Or Receive Alimony? How Much And For How Long?

At Amaral & Associates, P.C., our attorneys have decades of experience protecting clients' financial interests in divorce and in the years afterward. We have the knowledge and resources to effectively handle the complex financial matters that arise in some divorce cases, including disputes over either spouse's income, earning capacity or other factors. Our strengths cover: Education of each individual client on his or her rights under current Massachusetts alimony law and important tax considerations associated with alimony payments Analysis of how the court is likely to rule on any proposed award of alimony or an action to modify or terminate alimony Formation and negotiation of creative solutions that may be agreeable to both parties, in order to avoid costly and stressful litigation over this often-contested issue

Reliable Guidance On Current Alimony Laws And Actions To Modify Alimony

Historically, many alimony orders in Massachusetts had no "durational limits," which meant they were often essentially permanent. Further, it was virtually impossible to obtain an alimony modification, reduction or termination. All this has changed. Today, alimony is categorized as general, rehabilitative, transitional or reimbursement alimony based on a range of personal and financial circumstances. For general-term alimony when the marriage lasted less than 20 years, the alimony obligation will be limited within a percentage of the length of that marriage. A schedule of dates upon which payers can seek alimony modifications based on current durational limits has been established, and we are well-prepared to advise you on whether you should take action to modify or terminate alimony. Also, since the enactment of the Alimony Reform Act, there is a statutory formula used to calculate the presumptive amount of an alimony order. There are grounds upon which a court can deviate from this formula. We are knowledgeable of how to calculate alimony in all cases, and when a deviation may apply under the right circumstances. There are many circumstances now that allow alimony to be modified, reduced or terminated. This includes situations in which the recipient spouse cohabitates with a significant other or when the payer spouse attains full retirement age, as defined by the Social Security Administration.

Schedule Your Consultation With An Experienced Alimony Attorney Now

If you must prepare for divorce or have questions about changing or ending an alimony obligation, please call 617-539-1010 or contact us via email now. We maintain full-service law offices in Winthrop and in Boston's North End and Waterfront, and we will provide an initial consultation. Read the full article

The Legal Status of Parent Coordinators in Massachusetts- An Update

In 2014 we blogged about the legal status of Parent Coordinators in Massachusetts.  The article was written just after the Supreme Judicial Court decided the case of Bower v. Bournay-Bower.  However, since that decision came down in September 2014, a lot has changed.   For those who do not know what a Parenting Coordinator is, a Parenting Coordinator is a trained attorney or mental health professional who has a background in child custody and parenting time disputes assist parents to resolve and reach agreement concerning disagreements about co-parenting, custody, and the parenting schedule.   Parent Coordinators are commonly used in child custody and parenting matters in Massachusetts to facilitate resolving disputes between parents on issues relating children of divorce and children born out of wedlock.  The Parent Coordinator typically acts as a referee to rule on any disputes, or works more like a mediator to help the parents negotiate and resolve any dispute.  Using Parent Coordinators can be an effective tool in assisting parents in avoiding lengthy litigation in the Probate and Family Court to resolve custody and parenting disputes.   After the Bower decision, the Probate and Family Court convened a committee to develop uniform standards for Parenting Coordinators.  In 2017, that committee issued Standing Order 1-17, which is now the uniform guidelines and standards for Parenting Coordinators throughout the Commonwealth of Massachusetts.  The Standing Order further clarifies the Bower decision, and also addresses when a Parenting Coordinator can be appointed in a divorce or family law case.   After the Bower decision, it was unclear whether the Probate and Family Court could appoint a Parenting Coordinator over the objection of one parent.  The Standing Order clarifies that the Probate and Family Court can appoint a Parenting Coordinator over the objection of one parent as long as the parent requesting the Parenting Coordinator agrees to pay for 100% of the Parenting Coordinator’s fees.  However, in this circumstance, any decision by the Parenting Coordinator cannot be binding up on the parents, and is always subject to review by the Probate and Family Court.   The Standing Order also reiterates from Bower that if both parents agree to appoint a Parenting Coordinator, a Parenting Coordinator can still be appointed.  In this circumstance, the parents can be bound by the decision of the Parenting Coordinator, and that decision is not necessarily subject to review by the Probate and Family Court.   Another benefit of the new Standing Order is that there is an official list from the Probate and Family Court of qualified Parenting Coordinators.  These Parenting Coordinators have gone through 70+ hours of professional training in high custody conflict education, intimate partner violence education, and mediation training.  Attorney Talia Simonds from our office has qualified to be on this list generated from the Probate and Family Court.       Now that Standing Order 1-17 is in effect, it is clear that Parenting Coordinators may continue to assist parents in conflict.  However, as with any new law, there are issues with implementing the new Standing Order.  There are certain administrative issues in the implementation of Standing Order 1-17 that are proving to be difficult.  The Probate and Family Court understands that the Standing Order will likely need some tweaking over time as the courts continue to appoint Parenting Coordinators.   What is important to know now is that Parenting Coordinators still exist, and can still be appointed in high conflict cases.   If you want to learn more about Parenting Coordinators, or are looking for a Parenting Coordinator for your case, contact Attorney Talia Simonds at [email protected] or (617) 539-1010.   Read the full article

Getting divorced can come with plenty of heartache, paperwork, and even financial burdens. But can divorce hurt your credit?