Robin M. Lynch Nardone

What is the Nisi Period?


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

Recent Changes to the Law Relating to Child Support and Health Insurance

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
Grounds for Divorce Part II – The Fault Grounds

AdobeStock_209437803.jpeg

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
Grounds for Divorce – Part 1 - Irretrievable Breakdown

shutterstock_429855238General 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

For the Love of Pets

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

To Post or Not to Post, that is the Question

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

Is a Permanent Restraining Order Really Permanent?

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

Rethinking the Amount of Alimony

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

How Much Alimony Does a Spouse Need?

The alimony statute in Massachusetts provides that the amount of general alimony shall generally not exceed the recipient’s need or 30 to 35 percent of the difference between the parties’ gross incomes. It has long been the rule that the standard of need is measured by the “station” of the parties — by what is required to maintain a standard of living comparable to the one enjoyed during the marriage. The Supreme Judicial Court has provided further guidance in the decision of Young v. Young.

Derek and Joy Young had been married for 24 years when Mr. Young filed a Complaint for Divorce. Mr. Young worked as an executive, and his compensation consisted of base salary, cash bonus, stock options, investor equity units, share plans, and opportunities to purchase common stock at a discount. Mr. Young earned a substantial income, but the amount varied widely year to year. The parties enjoyed an affluent, upper-class standard of living during their marriage, which included an eight-bedroom residence, luxury vehicles, a summer home, and expensive vacations.  After trial, the Court ordered Mr. Young to pay alimony to Mrs.Young of 33% of his gross annual income. The trial judge determined it was … Keep reading

Tricky Halloween Parenting

When I was a child, Halloween was the day my father came home from work early to walk my sister, brothers, and I around the neighborhood in the costumes my mother made. Store-bought costumes were out of the question. The rule was that all homework had to be done before we could go out. While my dad walked up and down neighbors’ driveways with us, my mother stayed home to hand out candy that she stockpiled in a big ceramic pumpkin. My mom loved to see all of the costumes on the children who came to the door. When we got home, she checked our loot for anything suspicious, which also gave her the chance to steal those Nestle Crunch bars she coveted.

Families have different rules and traditions surrounding Halloween. But when parents decide to separate and divorce, things inevitably change. Some parents hold tight to try to keep traditions alive, while others seek to immediately change things. Parents often cannot agree on who will buy the costumes and who will take the children trick-or-treating. Sometimes, parents insist that they both walk around with the children, which is good solution in situations that are truly amicable, but creates … Keep reading