When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. I have written about how your election impacts your ability to modify provisions in the future.
The recent decision in Griffin v. Kay is an excellent cautionary tale about making sure that the merger or survival language is clear and that both you and your spouse agree on what that language means.
Geraldine Griffin and Harry Kay divorced in 2004 and entered into an agreement calling for Harry to pay alimony of $90,000 per year until the death of either party or Geraldine’s remarriage. Their agreement provided as follows relative to merger or survival of the alimony provisions:
Notwithstanding the incorporation of this [a]greement in the [divorce judgment], it shall not be merged … Keep reading
More and more couples are electing to sign prenuptial agreements before their big wedding day, yet some can’t agree, don’t want to, or don’t have time to do one beforehand. After all, some people continue to believe that asking for a prenuptial agreement indicates that they expect the marriage to fail. Even if that is not the case, discussing a prenuptial agreement can be a difficult conversation to have during one of the happiest times of a relationship, making it problematic for some couples to agree on whether a prenuptial agreement makes sense for them.
Suppose you did not sign a prenuptial agreement before the wedding but wish to set forth financial rights and obligations between you and your spouse during your marriage or in the event of divorce or death. A postnuptial agreement may be an option for you to consider.
Below are some things to think about when considering a postnuptial agreement.
What is the difference between a prenuptial agreement and a postnuptial agreement?
A prenuptial agreement is a written contract signed between parties intending to marry. It outlines their financial rights and obligations if the marriage ends due to death or divorce.
People often enter into … Keep reading
When summer and school vacations approach, many divorcing spouses wonder: what happens with the children and the parenting plan? Do I get to take them for vacation, and sign them up for camps? What happens if my coparent refuses to let me take the children to my family reunion that only happens once every ten years?
Summers and school vacations can be stressful due to the changes in routine alone. That stress can be exacerbated by issues communicating with your coparent, or by uncertainty about vacation parenting plans and travel arrangements.
There are no hard and fast rules on these issues under Massachusetts law. However, to minimize stress and disruption for you and, most importantly, for your children, it is useful to know what is typical for coparenting and parenting plans during school and summer vacations, as well as how to address issues that may arise around vacations and coparenting.
A preliminary issue to consider is what is typically ordered by a judge, or agreed to between divorcing parents, as far as summer and school vacation parenting plans:
- February/April Vacations: Massachusetts public schools typically have two week-long vacations, one in February and one in April. These vacations are
… Keep reading
What do Bridget Moynahan, Tiki Barbar, and Denise Richards have in common? They (or their spouse) were all pregnant while going through a divorce.
Divorce is never easy. Divorcing while pregnant adds another complication. In some states it is not even possible to finalize the divorce while a party is pregnant. However, in Massachusetts, although expecting parents are permitted to finalize a divorce, there are certain obstacles about which a divorcing, expecting parent should be aware.
1. There is a legal presumption that a child born to a woman during a marriage is the child of her spouse.
Pursuant to Massachusetts General Laws, Chapter 209(C), section 6, a man is presumed to be the father of a child if he is married to the mother at the time of birth of the child or if the child is born within 300 days after the marriage is terminated by death, annulment or divorce. (While the terms man and woman are contained in the statute, this law applies to same-sex couples, as well.) The husband’s name will automatically be placed on the birth certificate of the child, even if the husband is not the biological parent. It then becomes the burden … Keep reading
“You’ve been served.” But what does that actually mean? The service of court papers (referred to as “service” throughout this post) has been a hot topic in the news recently as Jason Sudeikis allegedly had his ex-partner and co-parent, Olivia Wilde, served with court documents for a child custody case while she was on stage at CinemaCon in Las Vegas. Sudeikis swears he knew nothing about the very public way in which Wilde was served. However, most family law lawyers would tell you that Sudeikis’ purported ignorance is suspect considering the purpose of service, and how it is generally accomplished.
Service in its purest form is notice. It is giving the other party to a court case notice that an action has been filed against them. Examples of family court actions where service is necessary include divorce, child custody matters, contempts, modifications, etc. Upon the filing of a court case, the court in which the case was filed issues a summons. Depending on the action, the summons can demand that the party appear at the court on a certain date at a certain time, or take other action, such as filing an answer (a formal response) to the complaint … Keep reading
Alcohol consumption is widespread in American culture. A 2020 study conducted by the Centers for Disease Control found that two-thirds (66.3%) of American adults consumed alcohol in the past year, with 5.1% of them admitting to engaging in regular heavy drinking.
The likelihood of divorce triples for couples where one party struggles with alcohol. According to some statistics, more than 14.5 million Americans suffer from alcohol abuse disorders – defined by the National Institute on Alcohol Abuse and Alcoholism as a chronic relapsing brain disorder characterized by an impaired ability to stop or control alcohol use despite adverse social, occupational, or health consequences.
Study data reflects that more than 7.5 million children in the United States live with a parent who suffers from an alcohol abuse disorder.
How are children protected during a divorce? The Court always strives to maintain a parental relationship while also protecting the child(ren) from harm. When a parent’s alcohol use impairs their ability to care for a child physically and/or emotionally during or after a divorce, the Court will intervene.
Interventions can include:
- Requiring a parent to maintain sobriety in order to exercise parenting time, which is monitored through random urine screens or the
… Keep reading
Many divorcing spouses worry about the possibility of their spouse selling assets during a divorce and leaving little or nothing to be divided. It can be particularly problematic if a spouse was financially controlling or secretive, or handled all the finances during the marriage with the other having a limited idea of the full financial picture. One could sell assets that the other doesn’t even know exists. Or, a spouse might transfer money or property to a family member to try to prevent it from being accessed by the other spouse, anticipating that the family member will transfer it back after the divorce is final.
But will the Court really allow a spouse to cause financial harm to the other by allowing assets to be sold or transferred in this way? Probably not, due to Supplemental Probate and Family Court Rule 411. This is sometimes referred to as the “Automatic Restraining Order” or “Rule 411.”
This article will discuss how Rule 411 works, and what Rule 411 does (and does not do) to protect marital assets for equitable division during the divorce process.
Rule 411 Goes Into Effect When a Complaint Is Filed or Served
Once the spouse who … Keep reading
In recent years, cryptocurrency has sparked concern in some divorcing clients. We hear questions such as “I believe my spouse has cryptocurrency or other digital assets and we are going through a divorce. What can I expect?”
With the increase in popularity over the past decade of cryptocurrency and other digital asset holdings, including non-fungible tokens (NFTs), more divorcing couples are now fighting over those holdings. The difficulty in locating, tracking, and valuing cryptocurrency and other digital assets has added another layer of dispute in a divorce. Some divorcing spouses believe that they can underreport or hide funds in cryptocurrency wallets given it can be difficult to find or access information about those assets due to the built-in secretive nature of the holdings.
But digital assets are not untraceable. While the process for locating and tracking these assets can be a long, slow, step-by-step process, it is possible to follow the money and account for most, if not all, of the digital assets held by a spouse in the divorce process. with the guidance from an attorney knowledgeable in the area, and the assistance of a savvy expert/analyst.
While most cryptocurrency holders buy and sell on an online exchange, … Keep reading
It depends on what was put into writing – or not! On January 10, 2022, the Massachusetts Supreme Judicial Court (SJC) ruled that where a former husband failed to change the beneficiary designation on his life insurance policy, the divorce operated to revoke the designation of his former wife as primary beneficiary.
In the case of American Family Life Assurance Company of Columbus v. Joann Parker, the SJC was asked to consider whether the Massachusetts Uniform Probate Code (UPC), which went into effect on March 31, 2012, applied retroactively to a policy of insurance purchased by Sean Parker in 2010.
When he purchased the life insurance policy in 2010, Sean named his then-wife, Dawn, as primary beneficiary and his mother, Joann, as the contingent beneficiary. Sean and Dawn divorced in 2016, but their Separation Agreement makes no mention of the life insurance policy. Rather, their Separation Agreement provides only that they divided their personal property to their satisfaction and that there were no agreements between them outside of the Separation Agreement.
Following the divorce, Dawn continued to pay the premiums on Sean’s insurance policy, because she claimed he had agreed that she remain the beneficiary of the policy. … Keep reading
Court is inevitable in divorce proceedings. Even if you and your soon-to-be ex-spouse are in full agreement on all issues, you’ll need a judge of the Probate and Family Court to approve your separation agreement and incorporate it into a judgment of divorce. The judgment of divorce legally terminates your marriage. In cases where agreement cannot be reached, there can be numerous appearances in court, including motions, pre-trial and trial. There are some reasons you may want to consider avoiding a trial and instead consider mediation or other forms of alternate dispute resolution:
- Uncertainty: If you take your case to a judge to decide all issues or even just one or two issues that you and your spouse can’t agree on, there is uncertainty in going before the judge. Probate and Family Court judges have a lot of discretion in making decisions in a divorce, particularly those relating to child custody and asset division. So, one judge could decide your case differently than another, and parties do not get to choose which judge is assigned to their case. It can be hard to know what your assigned judge will do in your case and what the result will
… Keep reading