The modification process is a bit more streamlined than the divorce process, mainly because there is a lot less discovery. Since the property division portion of a divorce agreement or judgement is not modifiable, issues of valuation are rarely necessary.
Modification has a defined starting date: the date of the divorce. What were the circumstances then? This is shown by the financial statements or the custody plan as well as the court judgement or the parties’ agreement. Then the question becomes: What are the circumstances now and what is the material change in circumstances that warrants a modification?
If the modification is being brought under the new alimony law, then the change in circumstances will have been set forth in the law itself. In these cases, generally the person paying is asking for a reduction. The burden of proof is on the recipient to show why (if she/he can) the reduction or elimination should not take place.
Aside from alimony cases, the party alleging the change in circumstances usually has the burden of proving that a material change in circumstances has occurred. Most judges will not allow modifications at the time of motions for … Keep reading
Massachusetts is an equitable division state. This means that all property, whenever and however acquired, may be subject to division as well as utilized for support in a divorce case. If you are an owner or a shareholder in a closely held business and are facing divorce, you need to be braced for the discovery that will soon be headed your way.
The documents which are considered basic and minimal in order to value both the business and determine the owner’s true income with perks, are often some of the most private documents of the business. At least five years of tax returns, audited or unaudited financial statements, buy/sell agreements, offers to sell or buy the business, inventories, insurance policies, customer lists, patents, the list goes on and on. It is a good idea to have either in-house counsel (if you have them), or hire outside counsel, perhaps referred to you by your divorce attorney, so that the proper protections for the business during the litigation can be put in place. At the very least, a confidentiality agreement should be signed and approved by the court before the documents are produced.
Most valuation experts and forensic accountants … Keep reading
As I meander around the Internet reading tweets and posts about divorce, I realize there is a great misunderstanding on the differences between litigated divorces and mediated divorces.
Most divorces are resolved by negotiation of one kind or another; in fact, very few divorces go to trial. Mediation is simply a form of negotiation. It is a more intense form, if you will, as there is a neutral third party who can keep the combatants on track. For mediation to work there must be a level playing field, in terms of information, understanding and emotional equality between the divorcing spouses.
Generally litigation techniques (discovery, subpoenas and depositions) are necessary if one party has all the financial knowledge and the finances are complicated.
It makes a great deal of sense to engage in some limited discovery, including valuations, and then once all the cards are on the table, mediate. Mediation can happen with or without the attorneys in the room, although sometimes it’s best to have the attorneys involved as that can temper emotional inequality. The Courts strongly encourage it, but you need to know what the marital estate is before you begin.
Without mediation, … Keep reading
Absent a trial (and at least 95% of all divorce cases settle without one) a deposition is often the only time the parties to a divorce testify under oath. It is one of the most effective tools the lawyers have, both to find out what has really gone on and to discover what kind of a witness their client and the other side will be. Any good attorney will spend time with the client preparing him for the deposition. A while ago I came across a really good description in the Missouri Divorce & Family Law Blog.
Then yesterday a buddy of mine sent me the following insane video as to what not to do at a deposition. It rates as the most incredible piece of bad lawyering I’ve ever seen.
Nancy… Keep reading
Discovery is the point in the process where the attorneys, using various legal tools, are able to quantify just what is going on financially, as well as with other concerns, such as custody or parenting issues.
The first financial discovery tools are the Rule 410 production and the financial statement, both of which are described in a prior post. Once those have been exchanged, the attorneys usually move on to Requests for Production of Documents (RPD) which are expansions on the Rule 410 production. If yours is a case where there are business valuation issues or a need for a forensic accountant (more on those in later posts) then those experts will chime in here with a request for the documents they will need.
At the same time as the RPD is sent out, the attorneys often will exchange Interrogatories, which are a limited series of questions to be answered under oath. Generally the lawyers also ask what are called Expert Interrogatories, where we request information from the experts and their reports so that both sides know what all of the valuations are. These experts can range from real estate appraisers, business … Keep reading