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
The Massachusetts Appeals Court recently issued another decision interpreting the Alimony Reform Act, which went into effect in 2012. In the March 2, 2021 decision of Dolan v. Dolan, the Appeals Court provides guidance on the meaning of General Law Chapter 208, section 53(c)(1), which states:
(c) When issuing an order for alimony, the court shall exclude from its income calculation:
(1) capital gains income and dividend and interest income which derive from assets equitably divided between the parties under section 34.
In Dolan, the husband sought a downward modification of his obligation to pay alimony to the wife under a 2016 Judgment of Divorce after he sold his business, leaving him with lower earned income. The husband was continuing to receive payments from the sale of the business. He argued that capital gain income from the sale could not be considered when determining his ongoing alimony obligation because the business was an asset assigned to him at the time of the divorce. The wife argued that modification of alimony is a two-step process: the judge must first determine that there has been a material change in circumstances and only after that threshold is met can the … Keep reading
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
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
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
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
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
As a divorce lawyer who also does some probate litigation and trusts and estate work, I have always been interested in the interplay between divorce and trusts and estates. Recently, the issue of whether gifts are considered income for purposes of calculating child support came across my desk.
Now in talking about gifts, I don’t mean the ugly reindeer sweater grandma sends you for Christmas every year. When speaking of gifts, I am referring to a specific estate planning strategy where wealth is transferred to others via use of a gift tax exclusion. Gift tax exclusion, sounds scary, but it is actually a pretty simple concept. A gift tax exclusion is the amount of money, or other assets, one person can give to another person in any given year without incurring a gift tax (simply put, how much dough grandma can give you before it has to be reported to taxing authorities).
For 2019, the annual gift tax exclusion is $15,000, which means any one person can give another person cash or assets totaling $15,000 in 2019 without triggering a gift tax. It is common in families where there is money to spare for parents to gift children, spouses, … Keep reading
With wedding season just around the corner, here is a primer on what a pre-nuptial agreement can and cannot do for you:
What a prenup is:
A prenuptial agreement is a private agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce and death. Each state has its own laws regarding the enforcement and validity of prenuptial agreements. Which state’s law to apply depends on where the marriage will take place, where the couple will live during the marriage, and what state law the agreement says to apply.
In most states, the agreement has to be fair, the parties have to fully disclose their assets, and each party needs to have their own attorney.
The idea of fairness depends on the unique facts and circumstances surrounding each couple. Would it be fair if after 20 years of marriage, the “poorer” spouse walked away with only the small amount of cash she brought into the marriage and no alimony? Probably not, particularly if she was a stay at home parent raising the children. It is to the “wealthier” spouse’s advantage to give the agreement … Keep reading
“We have been together for so long, it is as if we are married.” In a small number of jurisdictions, including nearby Rhode Island, a couple can be legally recognized as being married, without any formal registration of a civil or religious marriage. This legal concept is often referred to as a common law marriage. Massachusetts is one of a majority of states in which common law marriage is not available. Nevertheless, some of the principles of common law marriage can be applied in Massachusetts divorce cases, particularly those in which alimony is at issue. For example, when considering the length of the marriage in a divorce case, Massachusetts courts have the authority, under limited circumstances, to include months or even years prior to a legal marriage as part of the overall length of the marriage. The effect of this artificial extension to the marriage length can be significant: the longer the marriage, the longer the potential duration of alimony.
The Massachusetts Alimony Reform Act of 2011 provided in its definition of “length of the marriage” that the marriage length shall be calculated as the number of months from the date of the legal marriage to the date of … Keep reading