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What is the Nisi Period?


According to the Massachusetts divorce statute:

Judgments of divorce shall in the first instance be judgments nisi, and shall become absolute after the expiration of ninety days from the entry thereof, unless the court within said period, for sufficient cause, upon application of any party to the action, otherwise orders.

A “judgment nisi” means a judgment that comes into effect on a specified date unless within a certain time period cause is shown why it should not go into effect.  For spouses getting divorced in Massachusetts, the nisi period results in the parties remaining married for 90 days after the Judgment of Divorce is issued. So what exactly is the reason for the nisi period?

The nisi period is a waiting period designed to allow parties to change their minds about the divorce, even those who have gone through protracted litigation and a trial.  For couples who file an uncontested Joint Petition for Divorce pursuant to G.L. Chapter 208, Section 1A (instead of a contested action initiated under Section 1B), there is an additional 30 day waiting period between approval of their settlement agreement and the issuance of the Judgment of Divorce, elongating the wait to be single to … Keep reading

Holding Onto The House– The Buy or Sell Dilemma in Divorce

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Ah, home sweet home.  Home is your happy place where you can rest and unwind.  It is the place you selected to start your family and where you and your family make memories. There is justifiably so much sentimental value tied up in the marital home, which is why deciding on the final disposition of the home is one of the most daunting, but important decisions to make during the divorce process.

If you’ve owned a home in Massachusetts for more than a few days, chances are that it has gone up in value since you purchased it.  Massachusetts has seen its median sale price for homes skyrocket by over twenty percent in the past five years, with total appreciation rates of nearly thirty percent during that same period.  So, in addition to that sentimental value, it is also likely that your home has a lot of market value, which can be both a gift and a curse in the context of a divorce proceeding. Sure, more money is great, particularly when each party is (in)voluntarily reducing her/his total net worth by roughly half in the divorce, but these high values of real estate often dwarf the rest of … Keep reading

What Is Federal Estate Tax?

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The federal estate tax (sometimes called the death tax) is a one-time tax that is imposed at death.  If you die with a certain dollar amount of assets, an estate tax return may be required and a tax may be due.  If a return is required, it is due 9 months after the date of death.

Sometimes clients confuse the estate tax with an income tax, but it is not a tax on income.  It is a transfer tax.  Essentially, it is a tax on the wealthy imposed at death.

When does it apply?

In 2019, a federal estate tax is due for all estates with assets of $11,400,000 or more.  If you die with a gross estate under $11,400,000, no estate tax is due.  If your gross estate is over $11,400,000, you pay a tax on the overage.  In general, the tax rate is between 18% and 40%, but it gets to 40% pretty quickly.

The large exemption amount is due to the recent changes in the tax laws that took effect in 2018.    The federal estate tax amount used to be $5 million adjusted for inflation.  It is now $11 million adjust for inflation so it increases … Keep reading

Allocation of College Expenses in Divorce

Saving for education

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

Grounds for Divorce – Part 1 - Irretrievable Breakdown

shutterstock_429855238General Laws c. 208, § 1A and G. L. c. 208, § 1B comprise the two Massachusetts no-fault divorce statutes, which allow for divorce on the ground of “irretrievable breakdown” of the marriage. In order to obtain a divorce in Massachusetts, the spouses must join together in a joint petition for divorce, or one party initiates the case by the filing of a complaint.  With a joint petition, both parties must attest via a notarized affidavit that the marriage has suffered an irretrievable breakdown.  With a complaint, the moving party must set forth a ground for the divorce, which can include the no-fault ground of irretrievable breakdown.

What is an irretrievable breakdown?

There is no test to be met to prove an irretrievable breakdown of the marriage. All that is required is for one spouse to feel, subjectively, that the marriage is over.  Neither G.L. c. 208 §1A nor §1B contain a requirement that a spouse enumerate any objective factors that would lead a court to the conclusion that a marriage is irretrievably broken.  Rather, a party (or both) can simply attest that the relationship has ended with no hope of reconciliation.  In adopting no-fault divorce grounds in 1975, … Keep reading

Talking To Your Kids About Prenuptial Agreements

If you have been divorced, you may be excited and yet anxious when your child decides to marry.  You may be happy that she has found love, but you may also be painfully aware of the difficulties she may encounter if the marriage ends in divorce.   How to protect your child from a possible divorce while still showing excitement for the marriage and welcoming her fiancé into your family can be a difficult balance.

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Raising the issue of a prenuptial agreement is not an easy discussion, and should not be had right after the engagement is announced.  Ideally the discussion was had many years ago.  By the time the happy couple decides to wed, your child should already know that she needs a prenuptial agreement.

I tell my clients to talk to your kids about prenups around the time they start dating, or when they start to get serious with someone.  The earlier you talk to kids about prenups, the better.   If you wait until the wedding plans are announced, your child may be reluctant and the fiancé may be offended.  It may cause your relationship with your daughter or son-in-law to start out on a sour note.

Talking … Keep reading

Who Gets Custody of Fido After a Divorce?

As a mother of a three (3) year old, I spend a fair amount of time (more than I’d like to admit) immersed in animated television programs. I am struck by how many of these programs revolve around pets.  From Chase from “Paw Patrol” being “on the case,” to Caillou’s cat Gilbert going to the vet (is there really a more polarizing cartoon character than Caillou?), to the summer blockbuster “The Secret Life of Pets,”which follows the lives pets lead when their owners are at work or school (sequel coming soon), pets are an important part of daily existence.

A dog owner myself, I can appreciate how a pet becomes a central part of a family. Given the love people have for their pets, it is understandable that “Fido” can factor heavily into a divorce. Much to animal lovers’ chagrin, however, most states (including Massachusetts and Rhode Island), consider domestic animals to be personal property subject to division between parties to a divorce matter, just like cars, boats, furniture, salad spinners, etc. An informal, personal poll of several family court judges in Massachusetts suggests that judges are loathed to spend time thinking about the best interest of a pet, … Keep reading

To Post or Not to Post, that is the Question

A prenuptial agreement is designed to give parties control over the financial aspects of their lives in the event the marriage unfortunately ends in divorce. In addition to divorce situations, prenuptial agreements also give couples control over their rights to pass assets at death – allowing a party to disinherit a spouse or obligating a spouse to leave certain assets to their partner. Prenuptial agreements can also place restrictions and obligations on financial behavior during a marriage, for example, by requiring the filing of joint income tax returns and allocating the tax obligations, by requiring a party to obtain and maintain health or life insurance benefiting the other party, and even getting into the nitty gritty of who will pay the mortgage or buy the groceries. But what about control over other behavior during a marriage?

One thing high profile couples are now looking to include in prenuptial agreements are restrictions on social media posts, with financial fines imposed if a party breaches those provisions. The restrictions on social media posting are designed to contractually prohibit a spouse from making private arguments public, from sharing embarrassing photos, and from disparaging their spouse during a marriage and after divorce. With … Keep reading

Is a Permanent Restraining Order Really Permanent?

It is the public policy of the Commonwealth of Massachusetts to protect citizens from the devastating impact of domestic violence. General Laws c. 209A provides “a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse” through court orders prohibiting a defendant from abusing or contacting a victim, or requiring a defendant to stay away from the victim’s home or workplace. Commonwealth v. Gordon, 407 Mass. 340, 344, 553 N.E.2d 915 (1990). See G.L. c. 209A, § 3. A 209A restraining order, also known as an abuse prevention order, can be issued ex parte, meaning without the defendant present in court, if the victim shows a substantial likelihood of immediate danger of abuse. An initial order issued without the defendant present then must be reviewed within 10 days to allow the defendant an opportunity to be heard by the court. After the hearing, the temporary abuse prevention order may be extended for no more than one year if the plaintiff proves, by a preponderance of the evidence, that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable … Keep reading

Estate Planning After Divorce

Divorce attorneys saw a wave of divorces last year due to the changes in the tax laws that took effect on January 1, 2019. If you were one of the masses whose divorce was finalized in 2018, now is the time to revise your estate plan. Here are the issues you should discuss with your lawyer:

  1. Make sure your estate planning attorney has a copy of your Divorce Agreement. Your attorney will need to know what obligations you have to your ex-spouse in the event of your death.
  2. Update your Health Care Proxy. The health care proxy allows you to name someone to make health care decisions for you if, for instance, you were in a car accident or had a health emergency and were unable to communicate. You may want to name an adult child, a friend, or another relative.
  3. Update your Power of Attorney. If you had an old power of attorney naming your ex-spouse, that should be revoked. You should also execute a new power of attorney naming a friend, relative or trusted advisor to act as your agent regarding your finances and assets.
  4. Update your Will and Trust. Remove the provisions for your ex-spouse, and
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