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
On July 8, 2019, the Massachusetts legislature approved changes to the law surrounding orders for health insurance coverage in cases where child support is ordered. The statutes impacted include G.L. c. 208 (the divorce statute) and G.L. c. 209C (for children of unmarried parents). The law, entitled An Act Making Appropriations For The Fiscal Year 2019 To Provide For Supplementing Certain Existing Appropriations And For Certain Other Activities And Projects, provides for, among other things, the following:
- If the Court enters a child support order, either parent may be ordered to maintain health insurance coverage for a child if such coverage is available at reasonable cost and is accessible to the child. Under the previous law, only the parent paying child support could be ordered to maintain coverage for a child, unless the parties otherwise agreed.
- Health care coverage is deemed to be reasonable in cost if the cost to the party ordered to provide health care coverage does not exceed 5% of the gross income of that party. Further, private health insurance shall be deemed not available at reasonable cost to a parent whose gross income does not exceed 150% of the federal poverty guidelines for the family
… Keep reading
In addition to irretrievable breakdown the marriage, which I explored in my last post, a party seeking a divorce in Massachusetts can do so under one or more of the fault grounds, which require proof of specific facts to warrant a divorce.
The fault grounds under M.G.L. c. 208, sec. 1 and 2 are:
- Cruel and abusive treatment – To be granted a divorce on the grounds of cruel and abusive treatment, a spouse must prove that the other party acted with such cruelty as to cause injury to life, limb or health, or to create a danger of such injury, or to create a reasonable apprehension of such danger. Cruel and abusive treatment can be found based solely on the use of cruel and abusive words if those words create a reasonable apprehension of violence, or tend to wound feelings to such a degree as to affect the health of party, or create a reasonable apprehension that a party’s health might be affected. Cruel and abusive treatment is an often cited ground for divorce.
- Adultery – Unlike cruel and abusive treatment, seeking a divorce on the grounds of adultery is not seen often. The reason is that
… Keep reading
General Laws c. 208, § 1A and G. L. c. 208, § 1B comprise the two Massachusetts no-fault divorce statutes, which allow for divorce on the ground of “irretrievable breakdown” of the marriage. In order to obtain a divorce in Massachusetts, the spouses must join together in a joint petition for divorce, or one party initiates the case by the filing of a complaint. With a joint petition, both parties must attest via a notarized affidavit that the marriage has suffered an irretrievable breakdown. With a complaint, the moving party must set forth a ground for the divorce, which can include the no-fault ground of irretrievable breakdown.
What is an irretrievable breakdown?
There is no test to be met to prove an irretrievable breakdown of the marriage. All that is required is for one spouse to feel, subjectively, that the marriage is over. Neither G.L. c. 208 §1A nor §1B contain a requirement that a spouse enumerate any objective factors that would lead a court to the conclusion that a marriage is irretrievably broken. Rather, a party (or both) can simply attest that the relationship has ended with no hope of reconciliation. In adopting no-fault divorce grounds in 1975, … Keep reading
I grew up in a family where pets were always present. My dad was known to just randomly show up at home with a new puppy. At one point in my childhood, I think there were two dogs, two cats, two hamsters and a few fish living in our house. I have continued to share my home with pets in my adulthood – with always at least one cat (ok, often two). I have had my pets photographed with Santa (it was for charity!). I am known to give birthday cards from my dogs. At least I don’t dress them up in costumes – well, not usually.
Many people – myself included – consider their pets to be much more than property and love those pets almost as much as they love their children. Pets can become non-judgmental friends, companions for long walks, and a shoulder to cry on during difficult times. As my colleague, Andrea Dunbar, wrote in her recent post, pets are considered property in the Probate and Family Court when it comes to who will keep a pet after a divorce. But, where there is abuse, the Court can give a victim care and control … Keep reading
A prenuptial agreement is designed to give parties control over the financial aspects of their lives in the event the marriage unfortunately ends in divorce. In addition to divorce situations, prenuptial agreements also give couples control over their rights to pass assets at death – allowing a party to disinherit a spouse or obligating a spouse to leave certain assets to their partner. Prenuptial agreements can also place restrictions and obligations on financial behavior during a marriage, for example, by requiring the filing of joint income tax returns and allocating the tax obligations, by requiring a party to obtain and maintain health or life insurance benefiting the other party, and even getting into the nitty gritty of who will pay the mortgage or buy the groceries. But what about control over other behavior during a marriage?
One thing high profile couples are now looking to include in prenuptial agreements are restrictions on social media posts, with financial fines imposed if a party breaches those provisions. The restrictions on social media posting are designed to contractually prohibit a spouse from making private arguments public, from sharing embarrassing photos, and from disparaging their spouse during a marriage and after divorce. With … Keep reading
It is the public policy of the Commonwealth of Massachusetts to protect citizens from the devastating impact of domestic violence. General Laws c. 209A provides “a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse” through court orders prohibiting a defendant from abusing or contacting a victim, or requiring a defendant to stay away from the victim’s home or workplace. Commonwealth v. Gordon, 407 Mass. 340, 344, 553 N.E.2d 915 (1990). See G.L. c. 209A, § 3. A 209A restraining order, also known as an abuse prevention order, can be issued ex parte, meaning without the defendant present in court, if the victim shows a substantial likelihood of immediate danger of abuse. An initial order issued without the defendant present then must be reviewed within 10 days to allow the defendant an opportunity to be heard by the court. After the hearing, the temporary abuse prevention order may be extended for no more than one year if the plaintiff proves, by a preponderance of the evidence, that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable … Keep reading
As I wrote in a prior blog piece, under M.G.L. c. 208, sec. 53, the amount of alimony paid to support a former spouse should generally not exceed the recipient’s need or 30 to 35% of the difference between the parties’ gross incomes established at the time of the order being issued. While the Court has authority under the statute to deviate from the percentages, the 30 to 35% range provided an easy measure that helped many parties come to agreement on alimony. Then came the Tax Cuts and Jobs Act.
The Tax Cuts and Jobs Act signed by President Trump in 2017 included provisions eliminating federal tax consequences for alimony payments made pursuant to judgments issued and agreements entered into after December 31, 2018. Many people with pending divorce actions rushed to get their divorce agreements signed and approved by the Court before year-end 2018 to ensure that their alimony payments would be deductible by the payor and taxable to the recipient. For those who will begin paying alimony in 2019 or future years, alimony payors will no longer be able to deduct alimony from income reported on a federal income tax return and recipients will no longer … Keep reading