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
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
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, discoveryof 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.
If you’re considering a divorce, prepare to face some of the most difficult questions of your life. The divorce process doesn’t have to be a minefield of uncertainty, though. Some of the most common mistakes are also the most avoidable, as long as you have the right direction.
Join my colleague, attorney Michael (Mick) Judge for an inside look at the divorce process. He’ll touch on pre-divorce considerations (including pre-nuptial agreements, divorce mediation and marriage counseling), the divorce process, and post-divorce matters (including modifications and contempt actions). A financial advisor will join him to address many of the pressing financial implications of your divorce.
As a family law attorney, I’m often met with surprise (even outrage!) when I tell my clients that they’re required to participate in a Parent Education Program in connection with their Massachusetts divorce. People always say that it’s so much easier to get married than it is to get divorced, and that’s not entirely without merit.
While everyone knows that divorce is a costly process, both financially and emotionally, litigants too often become so focused on their own pain that they lose sight of the emotional toll the process can put on their children. Recently there have been some important changes to the Parent Education Program.… Keep reading
There are many stops on the road before a divorce trial takes place. If you and your soon-to-be-ex-spouse still have disputes after your four way meeting, your next shot at settling the case is through a pretrial conference. At the pretrial conference, the judge who would preside over the actual trial is the judge who will look through all your documentation and tell everyone what he or she thinks about the remaining disagreements. If you’re able to work through the disputes, this can be a great opportunity to settle without going to litigation. Your attorney should bring a draft agreement, as most people get divorced on the day of the pretrial conference.
Tell Your Story with a Pretrial Memo
In preparation for your pretrial conference, your attorneys have the opportunity to explain your side of the story through a well-written memo (a “pre-trial memorandum”). This memo should clearly explain to the judge what you want and why you deserve it. It’s your chance to tell your side of the story in the best way possible.… Keep reading
Privilege is one of the most important legal concepts that an attorney can be versed in. Inadvertently waiving the attorney/client privilege or the psychotherapist/patient privilege, for example, can have dire consequences for clients and attorneys alike. An interesting blog post by our esteemed colleagues in the Business Litigation and Employment Law groups got me (well, really Nancy) thinking about a lesser known privilege known as the common interest privilege and how same is relevant to divorce.
First, a little background on the Common Interest Privilege. According to the Restatement (Third) of the Law Governing Lawyers, a riveting legal treatise more commonly used to prop up a wobbly desk, the common interest privilege applies…… Keep reading