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What to do When a Spouse Ignores the Divorce Process

When a marriage becomes irretrievably broken, both spouses generally agree that a divorce is necessary.  However, some divorces are contested by one party, which may make the process more difficult and lead to prolonged negotiations and delay the ultimate resolution.  What can make things even more difficult is when one spouse refuses to even respond or engage in the divorce process.

When a spouse is dilatory or refuses to participate in the divorce process, here are some helpful tips:

  1. Service

The first hurdle in any divorce process is actually getting the process started.  Once a Complaint for Divorce is filed, the Summons and a copy of the Complaint for Divorce needs to be served upon the other party.  This is typically done by having a Constable or Sheriff deliver the Summons and Complaint for Divorce to the other spouse.  Once the Summons and Complaint for Divorce are served on the other spouse, the Original Summons, along with a Certificate of Service signed by the person who hand-delivered the Complaint, is returned to the Court for filing.  After the Summons is filed with the Court, the case is ready to proceed and the Court will likely issue a notice of … Keep reading

Webinar: How Divorce Impacts Your Teen's College Plans

In the fifth episode of our divorce-focused webinar series, Gregg Cohen, President and Financial Aid Lead of Campus Bound, joins attorneys Francine Gardikas and Andrea Dunbar to discuss the implications of divorce on college-aged children. Learn to navigate the college admissions process during separation or divorce by keeping the focus on your kids, and gain insight into shared expenses, financial aid rules, and potential scenarios — such as what to do if your ex refuses to pay for tuition.

Watch the full episode here.… Keep reading

The Pros and Cons of Mediating a Divorce Matter via Videoconference

As I mentioned in my last blog post outlining a few tips for videoconferencing, a discussion of the decision-making process as to whether to participate in mediation or conciliation via videoconference could be its own blog post.  So, here it is!

On July 13, 2020, Massachusetts state courthouses physically reopened to the public for limited purposes, including some in-person proceedings.  However, most hearings continue to be conducted by telephone or videoconference, often scheduled half an hour apart from other cases.  The result of the Court’s closure in mid-March due to COVID-19 and only gradual reopening since then is that the Court system is struggling to play catch up on matters that were not able to be heard during the Court closure, plus keep up with the continual new filings.  Parties are facing significant delays in getting their “day in court,” which is requiring parties and their counsel to think outside of the box and come up with creative solutions to address the ongoing needs of divorcing parties and their families.  One of these solutions may be to participate in mediation or conciliation via video conference.  While there is a difference between these two forms of alternative dispute resolution, for … Keep reading

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