As you know from my prior posts, I appreciate the interplay between divorce and estate planning. I enjoy working on cases where both worlds collide, and have been fortunate to be involved in some very interesting cases, which have involved irrevocable trusts.
A common misconception relating to irrevocable trusts is that they can’t be altered. This is not actually the case in many circumstances, and is important to remember, especially when family circumstances change, such as when a divorce arises.
A trust is irrevocable because either the donor (the person who established the trust) has died, or because the trust’s terms make it irrevocable. Changing an irrevocable trust can sometimes be done through a process known as decanting. When a trust is decanted, it is replaced by a new trust and the assets of the original trust are transferred to a new trust.
The Rhode Island decanting law lays out some specific requirements for an irrevocable trust to be decanted. Some of those requirements include the following. First, the terms of the original trust must allow for the trustee to make principal payments to one or more beneficiaries. Second, the trustee must exercise the power to decant via a … Keep reading
As we enter the “dog days of summer” and New England braces for a serious heat wave over the next few days, I can’t help but think about the importance of summer parenting plans. Summer is when most parents try to maximize the time they spend with their children. Free from the demands of school, homework, and most extracurricular activities, summer is an optimum time to enjoy quality time with children, especially school aged children. I recently saw a quote that said “there are only eighteen summers in childhood . . . How will you make this one count?”
As summer time with children is so fleeting and precious, summer parenting time can become a hot button issue in a divorce. When crafting a summer parenting plan, the best interest of the children should be at the forefront in setting the parenting schedule, and this generally entails maximizing the children’s time with both parents.
Summer parenting plans can take on many different forms. Some parents share time equally in the summer with their children. Some parents continue to observe the school year parenting plan with slight tweaks to allow for long weekends or vacation weeks. There are a myriad … Keep reading
To the recent high school graduates from the class of 2019, congratulations! For the parents (particularly divorced or divorcing parents) of the recent high school graduates from the class of 2019, I hope you’ve saved some money.
High school graduates are going off to college at increasingly high rates. Unfortunately for parents and students, the cost of tuition, room, and board for colleges and universities has skyrocketed within the past decade. Some schools are now topping out at a whopping $70,000 per year for these costs. I apologize in advance to our readers who expected a quip about the recent college bribery scandal; as a proud alum of the University of Southern California (was not on the crew team), I will limit this discussion to the publicized retail cost of colleges and universities. Go Trojans!
For family law attorneys, the issue of college costs is invariably at the forefront of our minds when dealing with any case involving children of college age and younger. Even divorce agreements in which a child is only a toddler will often mention at least some aspirational language regarding the parents’ mutual desire. Such as for little Jimmy to “have the opportunity to attend … Keep reading
Part 1 of this two-part series covered a basic overview of virtual or “crypto” currencies, such as Bitcoin, and the rise and significance of the currency as an asset, subject to division, within the divorce context. In this installment, we will explore the tools divorcing spouses and attorneys can utilize to discover these virtual currencies during the divorce process.
Let’s imagine that, during a divorce proceeding, you suspect or learn that your spouse has a “digital wallet” as large as George Costanza’s infamous wallet in Seinfeld. What should you do? Well, despite the recent creation of these virtual currencies (more recent than the Seinfeld reference), many of the established techniques to gather information and documentation during a divorce proceeding can be effective in learning more about a spouse’s virtual currency portfolio.
Per the Supplemental Probate and Family Court Rules, within 45 days of the commencement of a contested divorce in Massachusetts, each spouse is supposed to provide the other with a Rule 401 Financial Statement completely and accurately declaring all of her/his income, expenses, assets, and liabilities, as well as an initial exchange of relevant financial documentation, commonly known as Rule 410 documents. This initial information and documentation can … Keep reading
In some divorces/post-divorce situations, one parent wants to move with the parties’ children to another state, or even another country. This is called “removal,” and requires either the permission of the other parent or the approval of the probate court. Removal is commonly driven by a new job or spouse, a desire to return to a previous hometown in which friends and extended family live, or a need to move to a more affordable location.
Massachusetts’ highest court recently released a new removal decision in the case of Miller v. Miller. For many years, we have had two standards for the court’s analysis of whether to allow removal: the “real advantage” standard under Yannas v. Frondistou-Yannas—where one parent has primary physical custody of the children—that slightly favors the custodial parent seeking removal; and the “best interests” standard under Mason v. Coleman—where the parties share physical custody (roughly, 50/50)—that puts the parties on equal footing. Until now, cases typically fell under one standard or the other, based on existing custody stipulations, orders, or judgments.
In Miller v. Miller, though, the Supreme Judicial Court has fine-tuned the law a bit. From now on, probate courts must … Keep reading
Happy New Year, all! May 2018 bring you health, happiness, and prosperity.
The federal Tax Cuts and Jobs Act, in conjunction with Massachusetts’ Alimony Reform Act, will bring the Commonwealth’s divorce practitioners and their clients a certain amount of confusion.
Prior divorces and divorces with agreements completed in 2018 will not be affected. But most divorces take longer than a year to complete, and thus, many folks filing in 2018 will be impacted by the changes.
The new federal law eliminates the deduction for alimony in divorces occurring after December 2018. Every previous settlement contract (and judicial divorce decision) was negotiated with consideration of the alimony deduction. It enabled the parties to save some of the money that would otherwise have gone to the government in taxes.
The Massachusetts Alimony Reform Act was written with these tax implications in mind. The percentages of alimony to be paid (30% to 35%) reflect the deduction to the payor, and are, therefore, higher than the child support calculation.
Both of these are laws, and the federal supersedes the state. As a result, real inequities to the payor spouses will exist if the legislature does not find a way to make … Keep reading
Life with a narcissist is often destructive, demeaning, and difficult. In fact, being with that person can make it nearly impossible for you and your children to not lose yourselves entirely. Unfortunately, divorcing a narcissist is a complex and frustrating battle that can frequently feel like reliving the worst moments of your marriage.
In general, divorce requires defensive thinking. Divorcing a narcissist requires more. You have to think through what he may do (I say “he” because male narcissists outnumber females by 2 to 1) and you have to figure out how to let him believe he has won. Not an easy, quick, or inexpensive process.
The majority of divorce cases (approximately 95%) settle. Ones involving a narcissist typically do not. The path to finality is filled with unnecessary battles. In most cases, discovery of a spouse’s finances is relatively straightforward. Not so with a narcissist. There will be multiple trips to court necessitated by his focus on control, making the process costly and painful. There will be fights over children…
In the end, I have come to believe, through post-divorce friendships with my clients, that those fights are worth it – that being able to lead a … Keep reading
If you read this blog, you probably know that I am a huge proponent of negotiating settlements in divorce cases. As an attorney who has spent her career in divorce litigation, I know firsthand the costs associated with bringing a case to trial, and the devastation that trial can leave in its wake. But convincing parties who are angry and have hurt one another to compromise is no small feat.
The length of time and expenses involved with litigation can, therefore, encourage parties to become more reasonable. In some instances, one of the parties may be truly unable to recognize that compromise is in his or her best interest. But in others, a letter from counsel, laying out the realities of the various choices available and asking the client to sign off on the unreasonable negotiating position he or she is forcing their attorney to take, can break the logjam. (There are also times that intractable issues exist that must be tried; however, that is very rare.) A lot of cases settle on the eve of trial, which is horrifically expensive. Over the years, innumerable judges have told me that the best divorce agreements leave both sides unhappy. I … Keep reading
Newly separated and divorcing clients almost always come to us with preconceived ideas of what they hope/expect might happen in their cases. All too often, these preconceived ideas are based on a client’s own sense of equity and justice, but are incorrect as a matter of law. Here are five of the most common misconceptions, and reality checks for each.
1. My spouse almost never spent time with the kids while we were together, so he/she should not have significant parenting time with them now that we are separated.
Reality: Everything is subject to change post-divorce, including a parent’s active involvement in the day-to-day caretaking of the children. Gone are the days when it was presumed that the children would remain primarily with one parent after a divorce, spending every other weekend and perhaps a weekday dinner visit with the other parent. Courts are increasingly defaulting to shared-custody arrangements, even in situations where one parent’s involvement pre-divorce was fairly minimal. Every parent will be given the opportunity to be significantly involved in their children’s lives.
2. My spouse cheated on me, so I’m going to take him/her to the cleaners in this divorce.
Reality: As our fearless leader Nancy … Keep reading
I hope you all had a wonderful holiday, despite what may be trying circumstances. Throughout the year there were many changes and clarifications in basic divorce law that will affect the many of you that are planning to divorce in 2017. This period between Christmas and New Years is what I consider the calm before the storm, as January is generally a very busy month for divorce lawyers. This quiet week is the perfect opportunity to both reflect on the past and prepare for the future. Below is a list of blog posts that explain the recent changes to divorce law and what those changes mean for you.
As we say goodbye to 2016, I wish each of you a happy and healthy new year. See you in 2017!
2016 Changes and Clarifications to Divorce Law
Nancy… Keep reading