There are very few certainties in the divorce process. Even though you can draw generalizations from the law or experience, no two divorce matters will ever be exactly the same. For divorce practitioners, the variability from one case to the next is what makes matrimonial law a dynamic area of practice. One thing is for certain – eventually, the divorce process will end. It may not always be a happy ending, and there are numerous ways to arrive at the outcome. For example, the parties could reconcile and stay married, either side or both could die (it’s happened), the parties could go to trial or end up with a negotiated separation agreement. The vast majority of divorce matters – some estimate up to 95% of cases – end with the latter, though the journey to arrive at that final agreement can follow any number of paths with an incredible range in terms of time, money, and emotion expended along the way.
One approach to arriving at a negotiated separation agreement is through the parties’ participation in some form of alternative dispute resolution. Alternative dispute resolution (or “ADR”) is a broad term that encompasses options such as mediation, conciliation, and … Keep reading
Retirement accounts and benefits can be among the most valuable assets owned by parties who are divorcing. While parties can agree within their Separation Agreement to divide retirement assets between themselves in a particular way, the Separation Agreement itself is not a directive to the plan administrator (the person or company responsible for managing a retirement fund or pension plan on behalf of the participants) and will not suffice on its own to accomplish a division of retirement assets. Another separate order signed by the judge and sent to the plan administrator is necessary to effectuate the division of certain retirement benefits.
ERISA qualified retirement plans
ERISA (Employee Retirement Income Security Act of 1974) is a federal law that sets standards and provides protection for people participating in retirement and health plans in private industry. ERISA covers both defined benefit plans (pensions) and defined contribution plans (401(k), certain deferred compensation plans, and profit-sharing plans) offered by private employers. When a private defined benefit plan or defined contribution plan is divided as part of a divorce, a Qualified Domestic Relations Order or QDRO is needed.
A QDRO is a specialized court order that directs the plan administrator to allocate all … Keep reading
Perhaps growing up in Los Angeles took some of the fun out of celebrity gossip, but I never understood the fascination with stories about what is in the shopping cart of the (often shorter than advertised) celebrity standing in front of me at the grocery store. One aspect of celebrity gossip that has piqued my interest in recent years has been celebrity divorces, or more specifically, the public’s reaction to celebrity divorces and how it mirrors a lot of the same misconceptions we hear as divorce practitioners.
The fairly recent divorce between Amazon founder (and the reason most celebrities no longer go to the grocery store), Jeff Bezos, and his now ex-wife, MacKenzie Scott, comes to mind as a situation in which everyone seemed to have a “hot take” about the couples’ divorce financials. Given the staggering wealth being divided in the divorce, one of the comments I regularly saw on social media was “what did she do to deserve that much of his money?” Despite the misguided gender stereotypes being at an all-time high, the short response (as confirmed by Mr. Bezos, himself) was “a lot.”
In the third edition of this series about demystifying myths on dividing … Keep reading
One of the biggest concerns parties have when going through a divorce is that their spouse will dissipate, hide, or move assets without their knowledge and consent. The fear is that once assets are gone, they can no longer be divided in the divorce. While the dissipation, hiding, or moving of assets is unfortunately not uncommon during a divorce, there are three main protections available to protect assets during a divorce: (1) Rule 411 Automatic Restraining Order; (2) Trustee Process; and (3) ultimate property division. A summary of each of these protections is as follows:
- Rule 411 Automatic Restraining Order
In addition to prohibiting a divorcing party from incurring debt which would burden the credit of the other party and from changing the beneficiary of any insurance policy or retirement plan, the Supplemental Probate and Family Court Rule 411: Automatic Restraining Order prevents both spouses from taking actions which would affect marital property without the other spouse’s consent. It provides that neither party to a divorce “shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party.”
The Rule 411 Automatic Restraining Order becomes effective … Keep reading
A diamond is forever. Unfortunately, sometimes marriage is not. So, what happens to the engagement ring?
An engagement ring is in the nature of a pledge, given on the implied condition that a marriage will take place. If the engagement is broken off before marriage, then the “contract to marry” is said to be terminated and the donor (the one who gave the ring) can recover the ring, provided the donor was without fault relative to the breakup. After marriage, however, things are different.
Under Massachusetts law, upon a divorce, marital property is divided equitably. A judge may divide all property to which a party holds title, “however, and whenever acquired.” This means that any property owned by either party at the time of the divorce is subject to being allocated between the parties – including the engagement ring. Further, “fault” in terms of the reason for divorce will not result in the exclusion of the ring from the divisible marital estate. A judge will consider what is equitable under the facts of each case and has the power to order the ring to be retained by either party or sold. While an engagement ring is most often retained … Keep reading
“What’s mine is . . . yours?”
Welcome back to the long-awaited second part of my series on demystifying myths about asset division in divorce. I started this incredible year by addressing the most common of misconceptions about the divorce process – the impact of an extramarital affair in asset division. Since then, the world has seemingly turned upside-down. So for those of you yearning for simpler times, go back and check out the first part of this series before diving into Part 2.
In this second part of the series, we consider another of the common misconceptions about dividing assets in the divorce process, what happens to “personal” assets? By “personal” assets, I am generally referring to those premarital assets (including real estate) titled in one spouse’s name, inherited assets received by one spouse prior to or during the marriage, personal business interests, and those investment and retirement accounts that you worked so hard to grow over time. Basically, anything you would think of as “mine” instead of “ours.” As you can imagine, the divorce process heightens this sense of personal ownership of these assets, which makes what I am about to say next all the more painful … Keep reading
In the second episode of our new webinar series, Robin Lynch Nardone and Andrea Dunbar walked through the divorce process: financial disclosure, what documents you need to collect, parenting classes, and more. They discussed the distinctions between contested and uncontested divorces in Massachusetts and Rhode Island, and what to expect from either process.
Click here to watch the full episode.… Keep reading
While you are finally able to get your hair cut at a salon or barbershop, a bite to eat and drink at an outdoor restaurant, and even a pedicure (thank goodness!), the days of appearing in Court for a hearing, or in an office setting with a large group of people for a deposition or mediation, are likely a long way off. Even though social distancing requirements are being lifted, and even with the Supreme Judicial Court’s updated order of June 24, 2020, indicates that Massachusetts state courthouses will physically reopen to the public for limited purposes, including some in-person proceedings, on July 13, 2020, virtual court appearances, depositions, and other meetings are here to stay.
In order to keep divorce cases moving during COVID-19, many divorce lawyers and the Courts have transitioned away from in-person meetings entirely (except in cases where an in-person meeting is absolutely necessary) and towards videoconferencing. The Judges of the Probate and Family Court in Massachusetts have now all been granted “Zoom” accounts to conduct hearings (motions, pretrial conferences, and even trials) via videoconference. Mediators and conciliators are offering videoconferencing sessions, with the ability to conduct “break out” rooms for privileged settlement discussions between … Keep reading
Many people going through divorce experience feelings of fear, sadness, loss and depression. Out of concern for the impact seeking help for these feelings may have on custody disputes, some people choose not to seek help, which may only make matters worse.
The loss of a marriage and change in family is a traumatic experience. If you are going through a divorce, know that seeking help for feelings of depression and sadness is normal and reasonable, even for those seeking custody of their children. Needing to talk to someone, or even to take antidepressants, is common. There is no reason to avoid seeking treatment.
In 2019, the suicide rate in Massachusetts was 9.7 deaths per 100,000 residents. Research reflects that up to 20% of those in Massachusetts who committed suicide experienced an intimate partner issue, such as divorce, break-up or conflict in their relationship in the months or weeks prior to death. Even after the divorce is over, there is evidence that divorced and separated people have higher suicide rates than married people. Of divorced people, divorced men commit suicide at rates 9 times higher than that of divorced women. It has been suggested, though not proven, that because … Keep reading
Another week of social distancing, an extended stay-at-home advisory, and a new update on the status of operations of the Probate and Family Court due to COVID-19. While continued social distancing measures were certainly expected to continue in Massachusetts in some form past May 4, 2020, it was not easy to digest that this new “normal” would remain in place for at least the next month (particularly for this working mother of two young children who no longer has the assistance of outside childcare after Governor Baker announced last week that daycares would be closed until at least June 29, 2020).
On April 27, 2020, the Supreme Judicial Court issued an updated Order guiding Court Operations under COVID-19, which becomes effective May 4, 2020. The new Order extends the closure of the Probate and Family Courts from May 4, 2020, until at least June 1, 2020, except in the case of an emergency. A copy of the new order can be found here.
What does this new “normal” look like for divorce or custody matters presently pending or to be filed in the Probate and Family Court? Here are a few of the most relevant take-aways:
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… Keep reading