When a bankruptcy petition is filed, an “automatic stay” is put in place, which stops creditors from proceeding with collection actions, foreclosure, eviction, and the like. Assets are frozen so that the bankruptcy court has the opportunity to determine what assets are owned by the petitioner and what debts are owed. Suppose a spouse files a bankruptcy petition while a divorce is pending (or a divorce is filed while a bankruptcy petition is pending). In that case, the Probate and Family Court will be unable to proceed with the division of assets in a divorce due to the automatic stay, essentially halting the divorce process until the bankruptcy matter is concluded.
When a bankruptcy petition is filed by a party after a divorce and seeks to discharge financial obligations contained in a judgment of divorce, anything in the nature of a “domestic support obligation” cannot be discharged. Whether an obligation in a judgment of divorce is a “domestic support obligation” is determined by federal bankruptcy law and not by the Probate and Family Court. According to 11 U.S.C. § 101(14A), a domestic support obligation is a debt that (1) is owed to a … Keep reading
This year has been filled with strange new and different ways of interacting (or rather not interacting) with family and friends. I was happy to see that one thing stayed the same – holiday photo cards. I have to admit that the new life December brings to my mailbox is something I look forward to every year. I genuinely enjoy the cards adorned with family photographs. Holiday cards that I have received over the years have included engagement photos, wedding pictures, birth announcements, images of trips to exotic places, and updates on the lives of friends who I don’t hear from often enough. The images evolve over the years as babies are born, move through childhood, then grow up and start families of their own.
There is one holiday card I received years ago that sticks out in my mind. On this card was a picture of a mother with her two sons. On the back was the tale of how dad had “left the family” and a difficult divorce was in progress. That Christmas card later became an exhibit at the divorce trial.
Divorce happens. When it happens, it can be truly painful. But a holiday card is … Keep reading
In every Massachusetts divorce matter, parties are required to file financial statements with the Court within 45 days of service of the summons and to update and file new financial statements for each court appearance at which financial relief is sought, as well as at the time of pre-trial and trial. A party who earns less than $75,000 per year will complete the short form financial statement. A party who earns more than $75,000 per year will complete the long-form financial statement. While only the long-form financial statement requires notarization of the party’s signature, both the short form and the long-form are signed under the penalties of perjury. A party signing a financial statement must certify that the information contained therein is true, accurate, and complete. A willful misrepresentation on a financial statement subjects the party to sanctions, including criminal penalties. While I have yet to see anyone criminally punished for information contained in or missing from a financial statement, I have seen litigants suffer the consequences of their failure to take the necessary time to accurately complete the financial statement – namely, losing credibility in front of the trial judge. If a trial judge determines a … Keep reading
Retirement accounts and benefits can be among the most valuable assets owned by parties who are divorcing. While parties can agree within their Separation Agreement to divide retirement assets between themselves in a particular way, the Separation Agreement itself is not a directive to the plan administrator (the person or company responsible for managing a retirement fund or pension plan on behalf of the participants) and will not suffice on its own to accomplish a division of retirement assets. Another separate order signed by the judge and sent to the plan administrator is necessary to effectuate the division of certain retirement benefits.
ERISA qualified retirement plans
ERISA (Employee Retirement Income Security Act of 1974) is a federal law that sets standards and provides protection for people participating in retirement and health plans in private industry. ERISA covers both defined benefit plans (pensions) and defined contribution plans (401(k), certain deferred compensation plans, and profit-sharing plans) offered by private employers. When a private defined benefit plan or defined contribution plan is divided as part of a divorce, a Qualified Domestic Relations Order or QDRO is needed.
A QDRO is a specialized court order that directs the plan administrator to allocate all … Keep reading
I have written in the past about 209A Abuse Prevention Orders – the mechanism by which victims of family or household violence can obtain court orders of protection. Burns & Levinson partners Ronald Barriere and Cici Van Tine recently presented on the issue of divorcing an abusive spouse, which included discussion of the protections available. But what about someone who is being harassed or abused by someone who is not a spouse, family, or household member?
Under Chapter 258E of the Massachusetts General Laws, someone who is the victim of harassment can request an Order from the Superior Court, District Court, Boston Municipal Court, or Juvenile Court (for parties under age 17) to prevent harassment or abuse. Unlike when seeking a Chapter 209A Abuse Prevention Order, a party seeking a Chapter 258E Order is not required to show that the parties are related or have a history of any type of marital or dating relationship. Anyone can obtain a 258E Harassment Prevention Order upon a showing of harassment.
Harassment for purposes of obtaining a 258E Order is defined as (i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent … Keep reading
A diamond is forever. Unfortunately, sometimes marriage is not. So, what happens to the engagement ring?
An engagement ring is in the nature of a pledge, given on the implied condition that a marriage will take place. If the engagement is broken off before marriage, then the “contract to marry” is said to be terminated and the donor (the one who gave the ring) can recover the ring, provided the donor was without fault relative to the breakup. After marriage, however, things are different.
Under Massachusetts law, upon a divorce, marital property is divided equitably. A judge may divide all property to which a party holds title, “however, and whenever acquired.” This means that any property owned by either party at the time of the divorce is subject to being allocated between the parties – including the engagement ring. Further, “fault” in terms of the reason for divorce will not result in the exclusion of the ring from the divisible marital estate. A judge will consider what is equitable under the facts of each case and has the power to order the ring to be retained by either party or sold. While an engagement ring is most often retained … Keep reading
The deadline for filing 2019 federal and state income tax returns is right around the corner – July 15, 2020. If you were divorced in 2019, here are a few things to think about:
Filing Status – Your marital status as of December 31st controls whether you are considered married or single for purposes of filing your tax returns. Remember the Nisi period discussed in a prior post? Under Massachusetts law, a party is not considered divorced until the Nisi period expires. This means that even if the Judgment of Divorce is dated December 1, 2019, due to the Nisi period, you remained married for another 90 days. If you were still married as of December 31, 2019, you can file your 2019 tax returns as married filing jointly or married filing separately. There are risks and benefits to either filing option, so consult with your attorney. There is also an option to file as head of household where you are “considered unmarried” due to living apart from your spouse for six months or more during the tax year. To qualify as head of household, you must also have paid more than half the cost of maintaining your … Keep reading
One of the most frequent questions I am asked by parents involved in custody disputes is: “when is my child old enough to decide to live with me?” The answer – that children under age 18 in Massachusetts do not get to make decisions around parenting plans – often comes as a surprise.
M.G.L. c. 208, sec. 28 provides:
Upon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties and may determine with which of the parents the children or any of them shall remain or may award their custody to some third person if it seems expedient or for the benefit of the children….Upon a complaint after a divorce, filed by either parent or by a next friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the … Keep reading
Many people going through divorce experience feelings of fear, sadness, loss and depression. Out of concern for the impact seeking help for these feelings may have on custody disputes, some people choose not to seek help, which may only make matters worse.
The loss of a marriage and change in family is a traumatic experience. If you are going through a divorce, know that seeking help for feelings of depression and sadness is normal and reasonable, even for those seeking custody of their children. Needing to talk to someone, or even to take antidepressants, is common. There is no reason to avoid seeking treatment.
In 2019, the suicide rate in Massachusetts was 9.7 deaths per 100,000 residents. Research reflects that up to 20% of those in Massachusetts who committed suicide experienced an intimate partner issue, such as divorce, break-up or conflict in their relationship in the months or weeks prior to death. Even after the divorce is over, there is evidence that divorced and separated people have higher suicide rates than married people. Of divorced people, divorced men commit suicide at rates 9 times higher than that of divorced women. It has been suggested, though not proven, that because … Keep reading
Abusers like to isolate their victims – closing off relationships with trusted friends and family who can offer another perspective or a place of shelter from abuse. Stay-at-home directives issued to flatten the curve of COVID-19 are giving some people cherished time at home with family, while it is trapping others with their abusers. As my colleague, Andrea Dunbar, recently wrote, Courts in the Commonwealth of Massachusetts remain available for those in need of protection from abuse. But which Courts are available and how can they be accessed by those suffering intimate partner abuse?
All District Courts, Probate and Family Courts, as well as the Boston Municipal Court have jurisdiction to enter 209A Abuse Prevention Orders.
- There are 61 District Courts in the Commonwealth of Massachusetts. You can find the District Court that serves your home address here.
- There are 18 Probate and Family Courts in the Commonwealth of Massachusetts. You can find the Probate and Family Court that serves your home address here.
- The Boston Municipal Court has 8 locations serving the City of Boston. You can find the BMC locations here.
To obtain an initial 209A Abuse Prevention Order, forms can be emailed … Keep reading