In 2011, the Alimony Reform Act determined that alimony is “the payment of support from one spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time.” G.L. c. 208, §48.  The “reasonable length of time” during which alimony shall be paid has presumptive durational limits based upon the length of the marriage.  Pursuant to G.L. c. 208, §53, the Court can deviate from the durational limits when setting the initial award or at the time an alimony award is modified “upon written findings that deviation is necessary.”  The statute sets forth grounds for deviation, as follows:

(1) advanced age; chronic illness; or unusual health circumstances of either party;

(2) tax considerations applicable to the parties;

(3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;

(4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;

(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;

(6) significant premarital … Keep reading

When parties to a Massachusetts divorce settle their differences and come to an agreement, they enter into a written settlement document, commonly known as a Separation Agreement.  The Separation Agreement must then be presented to and approved by a judge in the Probate and Family Court. The judge will review the agreement and the parties’ financial statements to determine if the Separation Agreement is fair and reasonable, not the product of coercion or duress, and ensure that it makes adequate provisions for the care, custody, and support of any unemancipated children. If the judge approves the Separation Agreement, it is then incorporated into the Judgment of Divorce.  Beyond incorporation, the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract.  The parties also have the option to request that certain provisions of the agreement merge while other provisions survive.  All too often, I see unrepresented parties stare in bewilderment when asked by a judge if they intend for their Separation Agreement to merge or survive.

Provisions of an agreement that merge into a Judgment of Divorce are subject to modification upon a showing of a substantial and material change in circumstances.  Merged provisions can … Keep reading

As a life-long Massachusetts resident, I find it hard to understand people who move to Massachusetts from warm climates. While my colleague, Jordan Bowne, recently suggested that fall is a great time to be in Massachusetts, we all know what comes after fall. Here are some words and phrases that come to mind when I think of winter in Massachusetts: snow, sleet, freezing rain, black ice, frozen pipes, ice dams, blizzard conditions, polar vortex, school cancellations, wind chills below zero, thundersnow… Should I go on? After spending hours digging out and then placing a beach chair on the side of the road as a “space-saver,” it might occur to some people that a beach chair could be put to better use in a warmer locale. If you were divorced in Massachusetts but have since moved to a place where your beach chair is only used at the beach, what state has jurisdiction to enforce or change the alimony provisions in your divorce agreement?

Modification: Alimony provisions that merge into a Judgment of Divorce can be changed upon a showing of a substantial and material change in circumstances. When that occurs, a party seeking to change the alimony terms needs … Keep reading

Divorce is hard.  Along with all the emotional upheaval associated with the end of a relationship, the legal wrangling and disputes over division of assets, allocation of liabilities, parenting plans and the appropriate amount of support can be challenging.  When special needs children are involved, parenting and support issues become even more complex.

Special needs children can place extraordinary demands on their caretakers.  In fact, taking care of a special needs child often becomes a full time job for one of the parents.  The parent who sacrificed his/her career to care for the child is likely to be faced with on-going caretaking responsibilities beyond the child’s age of majority.  Determining spousal support for the caretaker-parent must account for the lost career opportunities both in the past, as well as in the future.

Where a child suffers from a physically debilitating condition, there can be challenges involved in meeting the child’s daily care needs, equipment, and specialized treatments that need to be considered.  Parents may not have the financial ability to have two sets of necessary equipment to allow a child to safely spend time in each parent’s home.  This creates additional problems when it comes to fashioning a parenting … Keep reading

My colleague, Jordan Bowne, recently explored the issue of whether the marital home should be retained by a party or sold when assets are divided in a divorce.  Before getting to the point in the process where that decision can be made, parties often find themselves in the uncomfortable position of living together after their relationship has soured and contested litigation is underway.  Going through a divorce is hard, but it is even harder when you are still sharing a bathroom with your soon-to-be ex.  Clients sometimes think that one party is required to move out once a divorce matter is filed with the Court, but that is not the case.  When the stress of living together gets to be too much, the question often asked is – how do I get my spouse out of the house?

The easiest, and best, option for separating is to have an adult conversation about who should stay living in the shared residence and who should move out.  This will necessarily include consideration of finances in the short-term, how time and relationships with the children will be impacted, and how long the divorce process will take.

When a mutual decision is not … Keep reading

According to the Massachusetts divorce statute:

Judgments of divorce shall in the first instance be judgments nisi, and shall become absolute after the expiration of ninety days from the entry thereof, unless the court within said period, for sufficient cause, upon application of any party to the action, otherwise orders.

A “judgment nisi” means a judgment that comes into effect on a specified date unless within a certain time period cause is shown why it should not go into effect.  For spouses getting divorced in Massachusetts, the nisi period results in the parties remaining married for 90 days after the Judgment of Divorce is issued. So what exactly is the reason for the nisi period?

The nisi period is a waiting period designed to allow parties to change their minds about the divorce, even those who have gone through protracted litigation and a trial.  For couples who file an uncontested Joint Petition for Divorce pursuant to G.L. Chapter 208, Section 1A (instead of a contested action initiated under Section 1B), there is an additional 30 day waiting period between approval of their settlement agreement and the issuance of the Judgment of Divorce, elongating the wait to be single to … Keep reading