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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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Rethinking the Amount of Alimony

As I wrote in a prior blog piece, under M.G.L. c. 208, sec. 53, the amount of alimony paid to support a former spouse should generally not exceed the recipient’s need or 30 to 35% of the difference between the parties’ gross incomes established at the time of the order being issued.  While the Court has authority under the statute to deviate from the percentages, the 30 to 35% range provided an easy measure that helped many parties come to agreement on alimony. Then came the Tax Cuts and Jobs Act.

The Tax Cuts and Jobs Act signed by President Trump in 2017 included provisions eliminating federal tax consequences for alimony payments made pursuant to judgments issued and agreements entered into after December 31, 2018. Many people with pending divorce actions rushed to get their divorce agreements signed and approved by the Court before year-end 2018 to ensure that their alimony payments would be deductible by the payor and taxable to the recipient. For those who will begin paying alimony in 2019 or future years, alimony payors will no longer be able to deduct alimony from income reported on a federal income tax return and recipients will no longer … Keep reading

Hi there,

Spring is a time for new beginnings. I am delighted to be able to introduce the new editorial board of Divorce Law Monitor, my partners, Robin Lynch Nardone and Christine Fletcher.

I have worked with Robin for 20 years and she is one of the best divorce lawyers I know. Christine brings a new strength to the blog as her practice is in the area of trusts and estates. She will help explore the interface between inheritance and probate issues and divorce.

Our new editorial calendar will provide a weekly post every Thursday.

I am looking forward to seeing where they will take the blog.

Best,

Nancy… 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