Author: Andrea Nelson

Can We Divorce Even if My Partner Is Pregnant?

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

Cryptocurrency, Digital Assets, and Divorce: How Do We Account for These Assets?

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

I want a divorce. Where do I start?

The decision to move forward with a divorce is never easy. Regardless of the length of the marriage, the reason for the divorce, or whether children were born or are expected of the marriage, you married that person for a reason and created a life with that person. To then decide to divorce that person, which will likely drastically change both of your lives and the lives of any children born of the marriage, is not a decision made lightly. The uncertainty of what to expect in divorce proceedings and what steps to take (or not take) are often equally paralyzing. Divorces are not just a breakdown of a relationship and partnership; they are often also a financial uncoupling. Making the wrong decisions may cause you not only additional emotional stress but financial loss.

If you ultimately decide you want a divorce, you may ask yourself, “What’s next? Where do I start?” Consider the following steps:

  1. Consult with an experienced divorce attorney.

Divorce is complicated. Knowing your rights and obligations under the statutes and case law for divorces in Massachusetts is critical to making a fully informed decision and getting the best deal possible. An experienced divorce attorney … Keep reading

Suspension of Parent Education Program Attendance in Divorce Actions

In an announcement made by the Probate and Family Court on June 25, 2021, effective September 1, 2021, divorcing parents of minor children will no longer be required to attend and complete the Parents Education Program as the Program is, at least temporarily, suspended. What does this mean for parents presently going through the divorce process? It depends on whether the complaint for divorce has already been filed or will be filed in the future. If filed on or before July 11, 2021, parents will still need to attend the Program and submit a certificate of completion before September 1, 2021. If the complaint for divorce is filed on or after July 12, 2021, the requirement is waived.

Prior to this recent suspension of the Parents Education Program, all parties to a divorce action in which there are minor children (under the age of 18) were required to attend and participate in an approved Parent Education Program pursuant to Standing Order 2-16. The purpose of Standing Order 2-16’s requirement was to provide divorcing parents guidance in understanding and addressing the challenges caused by divorce and to assist them in addressing and reducing the stress children may experience during and … Keep reading

In-State Relocation With Children During or After Divorce

I recently participated with a client in an uncontested divorce hearing where the Probate and Family Court Judge presiding over the matter said something I have not heard many judges say at an uncontested divorce hearing. Addressing both parents, the Judge called attention to the removal language contained in the divorce agreement, making specific note to the residential parent. The Judge pointed out that while the language contained in the agreement only referenced removal of the children out of the Commonwealth, if the residential parent wanted to relocate with the children within the Commonwealth – but at such a distance that would impact the current parenting schedule – the residential parent may need to seek the Court’s permission to do so before she moved. While most divorce agreements contain specific language prohibiting out-of-state removal, very rarely do separation agreements provide similar restrictions for in-state relocation of a great distance, yet Massachusetts caselaw does restrict in-state “removal.” I was pleased that the Judge in this case called attention to this issue so that both parents were reminded of their obligations post-divorce with respect to the other parent’s relationship and parenting time with the children.

M.G.L. c. 208 section 30 … Keep reading

Recovery Rebate Credits, Economic Impact Payments, and Divorce

On February 16, 2021, the IRS announced that all legally permitted first and second-round Economic Impact Payments (also known as “stimulus payments” or “stimulus checks”) have been issued. Beginning in April 2020, the IRS and Treasury Department began delivering the first round of Economic Impact Payments for qualifying individuals and families due to the economic crisis resulting from the coronavirus pandemic. According to the IRS, the second round of payments were to be made by January 15, 2021, although some second-round payments may still be in the mail. If individuals did not receive a payment, or receive the full amounts, they may still be eligible to claim the Recovery Rebate Credit (the first and second Economic Impact Payments are considered an advance of the credit), but must file a 2020 tax return in order to do so. While Economic Impact Payments were based on 2018 or 2019 tax year information, the Recovery Rebate Credit is based upon 2020 tax year information.

For married couples who are separated and no longer living together or who have initiated a divorce action since filing their 2019 income tax returns, a contested issue may be who is entitled to benefit from the Economic … Keep reading

Recent Appeals Court Decisions Clarifying Durational Limits for Alimony: Part 2

In my last blog post, I discussed the Clement v. Owens case, one of two recent decisions from the Appeals Court which further defined and clarified the durational limits of alimony in Massachusetts under the 2012 Alimony Reform Act. In this blog post, I will discuss the second case, Clemence v. Sklenak, which addressed the question of whether the Alimony Reform Act’s durational limits, set forth in G. L. c. 208, § 49(b), began to run on the date of the judgment of divorce (wherein the husband waived past, present and future alimony except in limited circumstances) or when alimony was awarded under a modification judgment. The Appeals Court found that because the divorce judgment provided for an initial “zero alimony award,” the durational limits commenced at the time of the entry of the divorce judgment.

In the Clemence case, the parties were married for approximately thirteen (13) years.  A judgment of divorce nisi, incorporating the parties’ Separation Agreement, was entered in January 2017. Pursuant to the terms of the parties’ Separation Agreement, the husband waived past, present, and future alimony. The Agreement further provided that the husband’s waiver of alimony was based upon his receipt of … Keep reading

Recent Appeals Court Decisions Clarifying Durational Limits for Alimony: Part 1

On Friday, October 16, 2020, the Appeals Court released two unpublished decisions further defining and clarifying the durational limits of alimony in Massachusetts under the 2012 Alimony Reform Act: Clement v. Owens-Clement and Clemence v. Sklenak.  In this blog post, I will discuss the first – Clement v. Owens-Clement – which addressed the question of whether a Court has statutory authority to grant a deviation from the durational limits on a complaint for modification filed after the presumptive durational limits had already expired.

In the Clement case, the parties were divorced after six years of marriage. In their Separation Agreement, both parties waived the right to past and present alimony but left open the option to seek alimony in the future. Approximately four and a half years after the divorce, and over a year after the presumptive durational limits of alimony under the Alimony Reform Act expired, the wife filed a complaint for modification seeking alimony from the husband on the basis of her complete disability and inability to support herself.  The wife underwent surgery for removal of a large brain tumor, continued to suffer from a seizure disorder, nerve damage to her face, and hearing loss, and … Keep reading

What to do When a Spouse Ignores the Divorce Process

When a marriage becomes irretrievably broken, both spouses generally agree that a divorce is necessary.  However, some divorces are contested by one party, which may make the process more difficult and lead to prolonged negotiations and delay the ultimate resolution.  What can make things even more difficult is when one spouse refuses to even respond or engage in the divorce process.

When a spouse is dilatory or refuses to participate in the divorce process, here are some helpful tips:

  1. Service

The first hurdle in any divorce process is actually getting the process started.  Once a Complaint for Divorce is filed, the Summons and a copy of the Complaint for Divorce needs to be served upon the other party.  This is typically done by having a Constable or Sheriff deliver the Summons and Complaint for Divorce to the other spouse.  Once the Summons and Complaint for Divorce are served on the other spouse, the Original Summons, along with a Certificate of Service signed by the person who hand-delivered the Complaint, is returned to the Court for filing.  After the Summons is filed with the Court, the case is ready to proceed and the Court will likely issue a notice of … Keep reading

Protecting Marital Assets During the Pendency of a Divorce

One of the biggest concerns parties have when going through a divorce is that their spouse will dissipate, hide, or move assets without their knowledge and consent. The fear is that once assets are gone, they can no longer be divided in the divorce.  While the dissipation, hiding, or moving of assets is unfortunately not uncommon during a divorce, there are three main protections available to protect assets during a divorce: (1) Rule 411 Automatic Restraining Order; (2) Trustee Process; and (3) ultimate property division.  A summary of each of these protections is as follows:

  1. Rule 411 Automatic Restraining Order

In addition to prohibiting a divorcing party from incurring debt which would burden the credit of the other party and from changing the beneficiary of any insurance policy or retirement plan, the Supplemental Probate and Family Court Rule 411: Automatic Restraining Order prevents both spouses from taking actions which would affect marital property without the other spouse’s consent.  It provides that neither party to a divorce “shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party.”

The Rule 411 Automatic Restraining Order becomes effective … Keep reading