For spouses contemplating a divorce, the issue of which assets will be divided is a significant consideration. In the United States, some states are “community property” states, meaning that most property acquired during the marriage, excluding gifts, inheritances, and assets owned prior to the marriage, is considered “marital” and accordingly divisible in the event of divorce. Other states, including Massachusetts, are “equitable distribution” states, meaning that assets held by either party acquired either before or during the marriage, including assets received via gift or inheritance or assets held at the time of the marriage, are “equitably” divided at the time of divorce.
In Massachusetts, absent a prenuptial or postnuptial agreement, the vast majority of assets are “touchable” (i.e., divisible) in divorce. Massachusetts law has a very broad definition of “marital estate” or “marital property” in the context of divorce. The marital estate includes all property to which either party holds title, whenever and however acquired, and wherever situated. The marital “pot” includes everything a divorcing party owns. This does not mean that a judge will necessarily give one spouse’s beloved autographed baseball collection to the other, but that the value of that collection will be taken into account … Keep reading
When you board an airplane, the flight attendant’s speech usually includes a welcome statement and requests that you securely fasten your seat belt. Then the attendant will alert you that if needed, oxygen masks will be released overhead and request that you secure your own mask before assisting others. Similar to an emergency plane landing, during a divorce, it is important to make sure to take care of yourself before helping others.
Many clients ask at the outset of their case how to best protect their children in divorce. My answer usually stresses the importance of self-care for the client. After my client has put on their own oxygen mask and taken care of themselves, they will ultimately be able to assist their child best.
As a family law attorney, it is my responsibility to shepherd clients through one of their most difficult situations – divorce. Divorce, for many, is the death of a dream. In this post, I’ve shared five tips that I recommend to clients going through a divorce.
Tip #1: Engage a therapist or mental health professional.
It is important to consider engaging a therapist to guide you through the roller-coaster of emotions associated with divorce. … Keep reading
A lot of emotions and impulses can arise during a divorce, and it’s critical to avoid any behavior that you may regret– including in the courtroom. What’s at stake? Credibility, time, money, custody, and peace of mind, to name a few. Below, read the top 10 behaviors to avoid during a divorce.
Do not put anything in writing that you wouldn’t want to have read aloud in court.
This means no harsh text messages or emails to your spouse, and no nasty messages to friends and family about your spouse either. If you are upset or overwhelmed and need to vent, speak to a therapist or other mental health professional, or, if this isn’t possible, a trusted friend or family member in a private location (and never vent to your children about their parent or stepparent).
Do not put any tracking devices on your spouse’s car or electronics.
Even if you suspect them of having an affair, installing tracking devices or spying on them or their friends will not produce any information that is valuable enough to risk your credibility in court. This type of behavior is frowned on by judges, and infidelity – without something else such as
… Keep reading
When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. I have written about how your election impacts your ability to modify provisions in the future.
The recent decision in Griffin v. Kay is an excellent cautionary tale about making sure that the merger or survival language is clear and that both you and your spouse agree on what that language means.
Geraldine Griffin and Harry Kay divorced in 2004 and entered into an agreement calling for Harry to pay alimony of $90,000 per year until the death of either party or Geraldine’s remarriage. Their agreement provided as follows relative to merger or survival of the alimony provisions:
Notwithstanding the incorporation of this [a]greement in the [divorce judgment], it shall not be merged in the [J]udgment, but shall survive the same . . . retaining its independent significance as a contract between the parties. Provided, however, in the event of a material negative and involuntary change in the circumstances of either party, that party may seek … Keep reading
When summer and school vacations approach, many divorcing spouses wonder: what happens with the children and the parenting plan? Do I get to take them for vacation, and sign them up for camps? What happens if my coparent refuses to let me take the children to my family reunion that only happens once every ten years?
Summers and school vacations can be stressful due to the changes in routine alone. That stress can be exacerbated by issues communicating with your coparent, or by uncertainty about vacation parenting plans and travel arrangements.
There are no hard and fast rules on these issues under Massachusetts law. However, to minimize stress and disruption for you and, most importantly, for your children, it is useful to know what is typical for coparenting and parenting plans during school and summer vacations, as well as how to address issues that may arise around vacations and coparenting.
A preliminary issue to consider is what is typically ordered by a judge, or agreed to between divorcing parents, as far as summer and school vacation parenting plans:
- February/April Vacations: Massachusetts public schools typically have two week-long vacations, one in February and one in April. These vacations are
… Keep reading
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
“You’ve been served.” But what does that actually mean? The service of court papers (referred to as “service” throughout this post) has been a hot topic in the news recently as Jason Sudeikis allegedly had his ex-partner and co-parent, Olivia Wilde, served with court documents for a child custody case while she was on stage at CinemaCon in Las Vegas. Sudeikis swears he knew nothing about the very public way in which Wilde was served. However, most family law lawyers would tell you that Sudeikis’ purported ignorance is suspect considering the purpose of service, and how it is generally accomplished.
Service in its purest form is notice. It is giving the other party to a court case notice that an action has been filed against them. Examples of family court actions where service is necessary include divorce, child custody matters, contempts, modifications, etc. Upon the filing of a court case, the court in which the case was filed issues a summons. Depending on the action, the summons can demand that the party appear at the court on a certain date at a certain time, or take other action, such as filing an answer (a formal response) to the complaint … Keep reading
Many divorcing spouses worry about the possibility of their spouse selling assets during a divorce and leaving little or nothing to be divided. It can be particularly problematic if a spouse was financially controlling or secretive, or handled all the finances during the marriage with the other having a limited idea of the full financial picture. One could sell assets that the other doesn’t even know exists. Or, a spouse might transfer money or property to a family member to try to prevent it from being accessed by the other spouse, anticipating that the family member will transfer it back after the divorce is final.
But will the Court really allow a spouse to cause financial harm to the other by allowing assets to be sold or transferred in this way? Probably not, due to Supplemental Probate and Family Court Rule 411. This is sometimes referred to as the “Automatic Restraining Order” or “Rule 411.”
This article will discuss how Rule 411 works, and what Rule 411 does (and does not do) to protect marital assets for equitable division during the divorce process.
Rule 411 Goes Into Effect When a Complaint Is Filed or Served
Once the spouse who … Keep reading
In recent years, cryptocurrency has sparked concern in some divorcing clients. We hear questions such as “I believe my spouse has cryptocurrency or other digital assets and we are going through a divorce. What can I expect?”
With the increase in popularity over the past decade of cryptocurrency and other digital asset holdings, including non-fungible tokens (NFTs), more divorcing couples are now fighting over those holdings. The difficulty in locating, tracking, and valuing cryptocurrency and other digital assets has added another layer of dispute in a divorce. Some divorcing spouses believe that they can underreport or hide funds in cryptocurrency wallets given it can be difficult to find or access information about those assets due to the built-in secretive nature of the holdings.
But digital assets are not untraceable. While the process for locating and tracking these assets can be a long, slow, step-by-step process, it is possible to follow the money and account for most, if not all, of the digital assets held by a spouse in the divorce process. with the guidance from an attorney knowledgeable in the area, and the assistance of a savvy expert/analyst.
While most cryptocurrency holders buy and sell on an online exchange, … Keep reading
It depends on what was put into writing – or not! On January 10, 2022, the Massachusetts Supreme Judicial Court (SJC) ruled that where a former husband failed to change the beneficiary designation on his life insurance policy, the divorce operated to revoke the designation of his former wife as primary beneficiary.
In the case of American Family Life Assurance Company of Columbus v. Joann Parker, the SJC was asked to consider whether the Massachusetts Uniform Probate Code (UPC), which went into effect on March 31, 2012, applied retroactively to a policy of insurance purchased by Sean Parker in 2010.
When he purchased the life insurance policy in 2010, Sean named his then-wife, Dawn, as primary beneficiary and his mother, Joann, as the contingent beneficiary. Sean and Dawn divorced in 2016, but their Separation Agreement makes no mention of the life insurance policy. Rather, their Separation Agreement provides only that they divided their personal property to their satisfaction and that there were no agreements between them outside of the Separation Agreement.
Following the divorce, Dawn continued to pay the premiums on Sean’s insurance policy, because she claimed he had agreed that she remain the beneficiary of the policy. … Keep reading