Divorce Planning

Planning Around Your Child’s Partner

We all love our in-laws, right?  (wink, wink)  Shielding your hard-earned assets from a child’s spouse in the event of divorce is a critical component of your estate plan.  Perhaps you love your son-in-law, but would prefer to pass assets down within your own bloodline.  Or, perhaps having been divorced yourself, you realize the possibility of your own child’s divorce, and you worry that your son’s inheritance could end up in the hands of his ex-spouse and their new family down the road.  Whatever underlies your concerns, there are ways to prepare an estate plan around these contingencies.

But before meeting with your estate planning attorney, a first step might be having a conversation with your child about a prenuptial agreement.  Admittedly, it can be difficult to discuss financial matters with your children, and even more uncomfortable to broach the subject of their potential divorce.  Recognize that your child may feel offended and hurt if they sense that you disapprove of their partner or question their judgment (in personal or financial affairs).  Keep in mind that you can’t force a prenup on your child, as doing so could invalidate it.

Whether or not a prenuptial agreement is on the … Keep reading

First of all, to our past, present, and future readers, we want to thank you for reading and wish you all a very Happy New Year!  We hope that our articles provide you with some new insight and perspective, as well as the occasional levity to the often challenging (but always interesting) divorce process.  In this “fake news” era, I thought it would be helpful to start the year by dispelling some “myths” and “misconceptions” of the divorce process, specifically, as they apply to the ubiquitous issue of dividing assets in a divorce.  I hope you enjoy.

Divorce practitioners are very familiar with our clients’ “friend” who was awarded all of the assets in the divorce because [insert divorce myth here].  The topic of these unscathed friends comes up frequently in the context of the initial intake meeting in which we discuss goals and expectations in the divorce process with our prospective clients.  Truth is, everyone going through the divorce process (for the first time) will inevitably have certain expectations about how the marital assets will be divided at the end of the divorce.  Often times, the expectations are rooted in someone else’s prior experience with the process.  As … Keep reading

First of all, to our past, present, and future readers, we want to thank you for reading and wish you all a very Happy New Year!  We hope that our articles provide you with some new insight and perspective, as well as the occasional levity to the often challenging (but always interesting) divorce process.  In this “fake news” era, I thought it would be helpful to start the year by dispelling some “myths” and “misconceptions” of the divorce process, specifically, as they apply to the ubiquitous issue of dividing assets in a divorce.  I hope you enjoy.

Divorce practitioners are very familiar with our clients’ “friend” who was awarded all of the assets in the divorce because [insert divorce myth here].  The topic of these unscathed friends comes up frequently in the context of the initial intake meeting in which we discuss goals and expectations in the divorce process with our prospective clients.  Truth is, everyone going through the divorce process (for the first time) will inevitably have certain expectations about how the marital assets will be divided at the end of the divorce.  Often times, the expectations are rooted in someone else’s prior experience with the process.  As … Keep reading

Now Leaving Massachusetts – The Impact on Alimony

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

Twelve Months in Mass. – Establishing Residency Before Filing for Divorce

“Massachusetts Welcomes You” is a sign that greets you as you make your way into the Bay State, regardless of whether you are just passing through or sticking around for a while.  In addition to Massachusetts being a tourist destination, many people (myself included) decide to relocate to Massachusetts from lands near and far for a variety of reasons. So what happens if you move to Massachusetts and decide to get divorced?  How long do you have to be in Massachusetts before its Probate and Family Court “Welcomes You”?

As we become a more migratory society, issues regarding which state (or even country) has jurisdiction over a divorce have become more common. Based on each state/country having its own laws on the issue, the answer is not always clear as to which jurisdiction is the appropriate one to file a divorce after a recent move or if you are frequently on the move.

Under Massachusetts law, the Probate and Family Court can assert subject matter jurisdiction over a divorce only if: (1) the spouses previously lived together in Massachusetts, and one of them lived here when the cause of the divorce occurred; (2) the plaintiff filing the divorce action … Keep reading

Updating Your Estate Plan in the Event of Divorce

It’s advisable to review and update your estate plan with any change in personal circumstances, financial circumstances, changes in the law, or just the passage of an extended time. But if you’re in the midst of a divorce, or contemplating one, this may be the furthest thing from your mind.  Here are a few key reasons why you should make updating your estate plan a top priority:

Divorce can take a while.  Divorce proceedings often take many months, and you wouldn’t want your soon-to-be-ex-spouse benefitting from or having any rights with respect to your estate if you were to die in the meantime.  While beneficiary designations for certain assets cannot be changed once a divorce proceeding is filed, you may be able to update documents like a Will, Trust, Durable Power of Attorney, and Health Care Proxy at any time, whether or not your divorce is finalized.

Your estate plan may no longer reflect your wishes.  In Massachusetts, a final divorce automatically revokes any beneficial provisions for and fiduciary appointment of your former spouse (or his/her family members) in documents like your Will and Trust, but leaves the rest of these documents in-tact.  The “back-up” individuals named in your … Keep reading

How To Read A Trust

If you are getting divorced, you may find that your marital assets include interests in one or more trusts.  It could be that you and your spouse established the trusts during your lifetime, or perhaps a family member created the trusts for the benefit of you or your spouse.  Either way, you need to know what the trusts say.  They may play a crucial role in the division of your assets or the support you will receive.

It is not uncommon for folks to know little about what the trusts say or do.  It happens all the time and is no reason for embarrassment.  It is a good idea to begin to read the trusts yourself and to ask questions about them.  You should rely on the advice of a trusted estate planning attorney.  If your divorce lawyer does not have an estate planning lawyer that he or she works with, you will need to find one.   Here are a few tips in reviewing your trust:

Familiarize yourself with the terms.  There are basic terms of the trust that you will need to know.  (Hint: A lot of this information will be found on the first page of … Keep reading

Living Together While Divorcing?

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

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
Dealing With Irrevocable Trusts in Divorce

WordPress Banner Blog Template.png

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