Scaling the Summit: A Family Law Blog

What County do I File my Divorce in?

noreply@blogger.com (Kelsey & Trask, P.C.) — Fri, 17 Feb 2012 15:50:00 +0000

In Massachusetts, the county that you file your Joint Petition for Divorce or your Complaint for Divorce in is controlled by M.G.L. c. 208 s 6.

Assuming that Massachusetts has jurisdiction to hear your case (which we explain in this previous post), you should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county.

To figure out how that standard applies in your case, answer these questions to figure out where you should file:

Question 1: Do you or your spouse still live in the county where you last lived together? If Yes, then file in that county. If no, then continue to Question 2.

Question 2: Do you both live in Massachusetts? If Yes, then you can file in either the county where you live, or the county where your spouse lives. If no, then continue to Question 3.

Question 3: Does one of you live in Massachusetts? If Yes, then you can file in the county in Massachusetts where one of you lives. If No, then you should file in the county that you last lived together in Massachusetts.

If you never lived together in Massachusetts and neither of you lives in Massachusetts now, then review our previous post on jurisdiction because there is a good chance, you cannot file in Massachusetts.

There are Two Exceptions to the above described rules:

Exception 1: In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.

Exception 2: In cases where this is a potential conflict of interest, the court having jurisdiction may transfer the action to another county. For example, if a court employee is getting divorced it would not be fair to them or their spouse to have the case heard in the court where the employee works.

Signs of a Cheating Spouse Infographic

noreply@blogger.com (Kelsey & Trask, P.C.) — Wed, 15 Feb 2012 15:00:00 +0000

In the wake of Valentine's Day perhaps you're wondering if you're the only one that your significant other bought a gift for. To help you answer that question a network of Private Investigators has put together an Infographic based on a survey of their members. Please don't take it too seriously:

Courtesy of: PInow.com

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Best Valentine's Day Gift: A Court Ordered Trip to Red Lobster

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 14 Feb 2012 15:00:00 +0000

NBC Miami is reporting that a Judge in Florida has ordered a husband to take his wife on a date. The Judge ruled that a fight between the couple over the man forgetting his wife's birthday did not result in serious enough violence to warrant further court action. Although, the Judge indicated he would not normally treat domestic violence so light-heartedly he categorized the incident in this case as "very very minor". The wife can be heard in the full video indicating that she wants her husband to come home.

After inquiring of the wife what she likes to do and where she likes to eat, he ordered the husband to buy flowers, a card, get dressed up and take his wife to Red Lobster and bowling afterwards. He was not ordered to let her win. The Huffington Post's coverage of the order is available below:

What Should I Expect at My Divorce Pre-Trial Conference?

noreply@blogger.com (Jonathan R. Eaton) — Mon, 13 Feb 2012 15:00:00 +0000

Many of our divorce clients wonder what will happen at the Pre-Trial Conference. Most divorce cases actually settle at or shortly after their Pre-Trial Conference, so it is important to understand what the process actually entails before it begins.

Prior to your court date for the Pre-Trial Conference, both parties and their respective attorneys, if any, will be required to meet in person at what is called a "four-way conference." The purpose of this is to encourage discussion about possible settlement prior to the Pre-Trial Conference, so that the process of resolving issues might have begun before the case gets in front of a judge.

There is no testimony at a Pre-Trial Conference. If represented by an attorney, parties will not generally be asked to speak, although some judges have been known to ask the parties a few questions directly.

Each party will be required to file with the court a memorandum summarizing the procedural history and positions on disputed issues. Different judges have different notices for a Pre-Trial Conference laying out the structure for their memorandums. Usually, it is a six- to ten-page document.

Both sides will have an oral argument in front of a judge, who will give his or her feedback on the disputed issues. The judge's response is usually framed as a range in which he or she is inclined to rule should each disputed issue be brought to trial. Since we have an individual calendar system, unless the judge that hears the pre-trial retires or changes courts, it will be the same judge at trial. This is an opportunity, therefore, to get feedback directly from the person who decide your case if you can't settle.

For example, if the parties cannot agree as to whether an inheritance to the husband shall be divided along with everything else, the husband and wife (or their respective attorneys) will each argue their respective positions. After reading the Pre-Trial Memorandum and listening to each side present their cases during oral argument, the judge will, during that hearing, provide feedback for how he or she would be inclined to rule should the facts as presented by the husband be proved at trial, and the same for the facts as presented by the wife. Once the parties hear what the range of results will be from the judge there is a more limited scope of options for settlement. Expectations are generally tempered accordingly, and, usually, negotiations pick up speed. Often, cases settle at or shortly after the Pre-Trial for this reason.

Should you have any questions about divorce, contact Attorney Jonathan R. Eaton, or call 508.655.5980 to schedule a one hour initial consultation.

It's a Mad, Mad World: Uncomfortable Praise for the Evolution of Divorce Law in the United States

noreply@blogger.com (Jonathan R. Eaton) — Thu, 09 Feb 2012 15:00:00 +0000

Mad Men Season 3 Episode Photos
Mad Men Season 3 Episode Photos Photo Gallery
Don Draper (Jon Hamm) in Episode 13

One of television's most popular shows, Mad Men (season five premieres on March 25 on AMC), is set in the early to mid 1960s New York, and features the troubled marriage and eventual divorce of two of its main characters. The show has earned praise for its efforts to remain historically accurate, and as such, gives divorce practitioners a chance to view the dissolution of a marriage as if it were in a time capsule.

The show's main character, Don Draper, is a professionally successful advertising executive with a lifestyle which includes a serious drinking problem and many extra-marital affairs. His wife, Betty, had been a model, but stopped working to care for their children after their oldest was born. After discovering one of Don's affairs, and finding out that he was actually living under someone else's name, and that he had previously been divorced in California, she went to her father's estate attorney to ask about her options regarding a divorce. The following is the dialogue between Betty and the attorney, fictionally set in 1963 (from the season finale of Season 3):

Attorney: "What do you want to do? Do you want a divorce? In New York State you need to prove adultery. Can you?"
Betty: "Maybe."
Attorney: "I mean prove it in a court of law. That's hard to do, unless he wants out, but you're not going to get anything. You won't even be able to buy [your brother] out of [your father's] house, so you'll have to sell it. And, he can take the children. That's my legal advice. You want the rest of it? Are you afraid of him?"
Betty: "No."
Attorney: "Is he a good provider?"
Betty: "Well, he is but that's not the point. It's a lie so big, Milton. I feel like I've been in some dream since I found out. Just saying it out loud to you is ... the first time I'm realizing it's true."
Attorney: "You have three small children together. At least, go home. Give it a try. That's what I'd tell my own daughter."

At the time of this fictional dialogue, No-Fault divorce had not yet become available in most states. New York became the last state to allow for No-Fault divorce in 2010. Massachusetts, by contrast, has had No-Fault divorce for over thirty years.

No-Fault divorce makes proving a wrong, such as adultery, unnecessary in a divorce proceeding. Since No-Fault divorce became common, divorce cases have shifted their focus from what a husband or wife has done wrong to accepting that individuals should have the ability to exit a marriage if they feel that it has irretrievably broken down, and figuring out how to sever some of the ties that bind a couple.

Other than the procedural requirement that something fault-based be proven in court, the two points that the attorney makes that are diametrically opposed to modern divorce law is the idea that Betty would not get anything, and that Don would get the kids. Modern divorce law is designed to (it doesn't always work out this way, but it is designed to) minimize the transition for any children in the midst of a divorce. Judges like to keep children in as stable position as possible. The idea of having three young children taken away from their stay-at-home mother to reside primarily with their father and his long hours and drinking problem, without much evidence that the children would be better off with him than with their mother, is unlikely in a modern divorce. Further, the revolution (and evolution) of alimony, property division, and child support within the context of a modern divorce would make it very unlikely that Betty would be left without many assets or support from Don to continue their upper middle class lifestyle.

Lastly, and this might be more the issue of a Hollywood script than a historically accurate portrayal of how attorneys spoke to potential clients about divorce fifty years ago, it is inappropriate for an attorney to try and convince a potential client to either obtain or refrain from obtaining a divorce. That is a personal decision that should be made only by the individual.

What is considered "fair" is fluid. Views on politics, ethics, gender relations, and many more issues vary over the course of time, and vary among different cultures within the same time. From this divorce practitioner's viewpoint, the modern divorce is generally "fair" given what that term carries in early twenty-first century Massachusetts, at least far more than what it was fifty years ago.

Implications for Firearms Owners Served with 209A Restraining Orders

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 07 Feb 2012 15:00:00 +0000

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing.

What happens to the seized firearms?

Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.

This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).

What if your employment requires the use of a firearm (such as a police officer)?

If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.

How long does a firearms license stay suspended after the initial service of a restraining order?

If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.

Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.

For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.

A Mental Health Public Service Announcement

noreply@blogger.com (Jonathan R. Eaton) — Mon, 06 Feb 2012 15:00:00 +0000

A lot of the work that we do is representing individuals as they transition through difficult periods of their lives. Whether in the context of a guardianship, bankruptcy, divorce, child support, or child custody proceeding, the process can often be emotionally taxing.

While we do our best to remain aware of therapeutic jurisprudence, our court system often falls short of the needs of individuals struggling to deal with the emotional toll of the process. We often work with individuals who are struggling to cope with the process, and encourage them to seek the support of friends, relatives, and/or a therapist. When it comes to your well-being, leaning on the support of others can assist in navigating a trying legal process. In short, don't be afraid to ask for help with your emotional needs while your attorney helps with your legal needs.

Post-Divorce Problems: Who has to pay for College?

noreply@blogger.com (Kelsey & Trask, P.C.) — Fri, 03 Feb 2012 15:00:00 +0000

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses. Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way.

When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.

If the issue of payment of college is modifiable in your agreement or defined vaguely or not at all, then when it comes time to determine how the college education expenses are going to be split, you should try to reach agreement with your ex-spouse on this issue. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing approving the division.

If your agreement is vague and you can’t agree, then you must file a Complaint for Modification to have the court determine contributions. If you have a specific agreement, but it is modifiable and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification.

If this issue is put before a Judge, many Judges are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.

Often child support and/or alimony orders may also be changed by a Judge if college education expenses are going to be added to the total support obligation.

Click here to learn more about filing a Complaint for Modification.

Probate and Family Court Funding Crisis in Massachusetts

noreply@blogger.com (Kelsey & Trask, P.C.) — Thu, 02 Feb 2012 15:00:00 +0000

The Massachusetts Bar Association posted the below video to raise awareness about the problems of not properly funding the judicial branch in Massachusetts. The Probate and Family Courts specifically have been hard hit, and were recently forced to reduce their hours. As discussed in the video, any law-abiding citizen can end up in the Probate & Family Courts for necessary family matters such as probating a family member's estate or obtaining a guardianship to protect an elderly relative. When these cases can't be heard in a timely manner, the system is failing the public. As the saying goes: justice delayed is justice denied.

"As the House of Representatives and then the Senate begin their budget debates in April and May respectively, you, as a member of the public or legal community, can make a difference, by reaching out to your state senators and representatives to reiterate the importance ensuring a full funded judicial system. Visit http://www.massbar.org/courtfunding to identify your state representatives and senators and join the MBA in advocating for proper funding of the state's third branch of government -- the Judiciary."

Post-Divorce Problems: My Children Aren't Safe with my Ex!

noreply@blogger.com (Kelsey & Trask, P.C.) — Mon, 30 Jan 2012 15:00:00 +0000

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable.

This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders. If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affidavit.

In order to make a change on an Emergency Motion the emergency must be significant enough for the court to make a change without the opportunity for the other party to be heard. Usually an order after an Emergency hearing will only last for a few days until the other party can attend a hearing and tell their side of the story.

Some examples of significant enough events to constitute an emergency are a parent abusing the child, taking illegal substances, being admitted to a psychiatric facility, or being arrested on a charge that would affect their parenting fitness.

Of course, if you are witnessing an immediate threat to your child’s safety then you should immediately call the police. Courts can only change orders, which are just pieces of paper. Pieces of paper don’t protect your children without proper enforcement.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: Should my Alimony Order Change?

noreply@blogger.com (Kelsey & Trask, P.C.) — Thu, 26 Jan 2012 15:00:00 +0000

Whether or not an alimony order can be modified post-divorce depends first on whether the order merged or survived. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed. When reaching an agreement, spouses can decide whether or not to make alimony orders or waivers permanent by surviving them or merge them into the Judgment. If merged this means that such orders can be modified if there is a material and significant change in circumstances. Merging alimony orders is more typical because no one knows exactly what could change in the future.

If the order merged, then the duration of an alimony order may be modifiable under The Alimony Reform Act of 2011. We have explored this possibility at length in our previous post: Modification under the Alimony Reform Act of 2011: Updated Flowchart.

In addition, under both the current law and the new law (which takes effect on March 1, 2012), alimony orders that merged can be modified if there has been a material and significant change in circumstances.

In order to modify alimony you must file a Complaint for Modification. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing. If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.

To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is alimony, then you must demonstrate that there has been a change to the factors that affect an alimony determination, such as the income of the parties, expenses of the parties or needs of the parties. In addition, you must demonstrate that that change is significant.

Click here to calculate your Alimony in Massachusetts under the new law.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: Should my Child Support Change?

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 24 Jan 2012 15:00:00 +0000

In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.

However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances.

In order to modify child support you must file a Complaint for Modification or a Joint Petition for Modification. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file a Joint Petition for Modification of Child Support. If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.
To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.

Click here to calculate your Child Support in Massachusetts.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: My Ex is Doing Better than Me

noreply@blogger.com (Kelsey & Trask, P.C.) — Fri, 20 Jan 2012 15:00:00 +0000

While our last post explored what happens when your ex violates the Divorce Judgment, what happens if everyone is following the agreement perfectly, but one of you has clearly got an advantage?

A common complaint that potential clients express to us is a dissatisfaction with their prior agreement or judgment because their ex-spouse seems to be doing very well. They might have a bigger house, or take a lot of vacations, or have a really nice car. In some cases this is a legitimate indicator that a support order may not be fair, and in those cases a Complaint for Modification may be warranted (our next few posts will address when this is appropriate).

However, many times this imbalance reflects something which can’t be fixed by a Complaint for Modification. In some cases exes have not fully accepted the divorce yet, and comparing your lifestyle to your exes is an indication that you haven’t yet moved on. Even with a well-crafted agreement your life is unlikely to turn out exactly equal to your exes.

Many couples divorce because they have different views on finances and in these cases usually one spouse is good at budgeting and the other is not. Divorce doesn’t change these habits, and a spender will still be a spender and a saver will still be a saver. A few years after a divorce, these different habits will become evident in the lifestyle of each ex-spouse. One of the consequences of separating your finances in the divorce is to give each person the chance to fail or succeed on their own, and if your ex has succeeded because they manage their finances better you have no legal (or moral) right to gain an ongoing benefit from that success.

In other cases, the imbalance that has been created is due to poor choices that were made at the time of the divorce. Both you and your ex-spouse may be equally good at budgeting, but if you made poor financial trades in your property division then you may be feeling the consequences of that now. For example if you were divorced in 2004 (prior to the housing market crash) and you took house equity in exchange for your spouse taking other assets, then you probably lost out on that deal. Your ex might still have close to their original value of assets, while you are left with little to no home equity.

I have often tried to explain to divorcing clients that trading one type of asset for another often has both tax consequences and risk/benefit consequences. Pinning one’s hopes in the housing market for their retirement is not always the best idea (especially not right now). However, many people still choose to trade different types of assets, in order to meet a non-financial goal, such as being able to stay in their home.

Once a property division is completed, these types of decisions, and their consequences, cannot be revisited. The importance of understanding your property division and its potential consequences is one of the most important reasons to consult with good legal counsel, and oftentimes with financial planning experts as well.

Click here to learn more about crafting appropriate Divorce Agreements.

Post-Divorce Problems: My Ex Isn't Following the Judgment

noreply@blogger.com (Jonathan R. Eaton) — Wed, 18 Jan 2012 15:00:00 +0000

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children.

This Judgment can be amended or enforced as necessary and dependent on certain circumstances. Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment.

In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual violates the judgment, the aggrieved party can file a Complaint for Contempt. In short, a complaint for contempt is a new lawsuit in which one person is accusing the other person of not following the judgment and requesting sanctions.

There are two types of contempts: civil and criminal. The goal of a civil contempt is to force compliance with the violated court order, and they are far more common than criminal contempts. The goal of a criminal contempt is to punish the other party for violating the earlier court order. Civil contempts are more common because usually you want the person to be forced to do what they were ordered to do in the first place, not just be punished for their failure to comply.

Click here to learn more about Contempt Complaints.

Child Tax Deductions: Who gets them in a Divorce?

noreply@blogger.com (Kelsey & Trask, P.C.) — Mon, 16 Jan 2012 20:02:00 +0000

On your Federal Income Tax Return you can claim an exemption for each qualifying child, which for the tax year 2011 will result in a $3,700 per dependent credit off of your taxable income. Depending on your tax bracket this could save you as much as $1,295 in federal taxes.

But if you are separated or divorced and filing separate federal income tax returns, who gets the exemption?

First of all, you can't both take it. Only one of the parents can use the exemption for each child on their return. If you both claim a child, the IRS will reject your return and send you a letter indicating that you must amend.

So which one of the parents gets to use the exemption?

Pursuant to IRS Publication 501, the IRS considers a child of divorced or separated parents in most cases to be the qualifying child of the custodial parent only. The IRS defines custodial parent as "the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent."

It doesn't matter if your agreement says you share custody. If one parent has the child more than 50% of the time, then that parent is the custodial parent as far as the IRS is concerned. ("If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI).")

It is possible, though, to transfer the exemption from the "custodial" parent to the "noncustodial" parent. Some division of this benefit is often negotiated as part of a divorce agreement or ordered by a Judge, to give the noncustodial parent some tax credit in exchange for the child support that they pay from post-tax income. In the case of one child, the exemption can be alternated from year to year, or when there are multiple children the exemptions can be divided between parents.

In order for this transfer to be allowed by the IRS, certain rules must be complied with. According to Publication 501, a child can be treated as the qualifying child of the noncustodial parent if four requirements are satisfied:

The parents are divorced or legally separated under a decree of divorce or separate maintenance, the parents are separated under a written separation agreement, or lived apart at all times during the last 6 months of the year, whether or not they are or were married;
The child received over half of his or her support for the year from the parents;
The child is in the custody of one or both parents for more than half of the year; and
The custodial parent signs a written declaration, Form 8332, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (For cases prior to 2008 this requirement is slightly different and you should review Publication 501 further).

If you have a divorce agreement that states that the non-custodial parent gets the child's tax exemption, then Form 8332 must be completed or the IRS could reject the return. If the custodial parent refuses to sign Form 8332 then you must file a Complaint for Contempt with the Probate & Family Court. The IRS will not honor the divorce agreement without a signed form 8332.

Visit our site for more information on how to file a Complaint for Contempt.

I Just Got Divorced, How Do I Change My Name?

noreply@blogger.com (Jonathan R. Eaton) — Thu, 29 Dec 2011 15:00:00 +0000

While there is a separate Petition for Change of Name in the Probate and Family Court, you can also change your name pursuant to a divorce judgment if your name change happens to be due to a divorce. There is a $150 filing fee plus a $15 surcharge for filing of a Petition for Change of Name. Technically there is only a $100 fee for changing your name pursuant to a Divorce Action, but this fee is seldom enforced.

If you are not sure if you want to resume a former name during a divorce you may still change your name later by filing a Petition for Change of Name with the court, starting a new court case specifically for that purpose.

Whether you change your name pursuant to a divorce case or pursuant to a Petition for Change of Name, there are some important logistics that you should be aware to record the name change with various agencies and organizations.

The court will not contact the Social Security Administration on its own. You will need to obtain a certified copy of your divorce decree (discussed further below), fill out and submit Form SS-5, and mail them both to your nearest social security office. The Internal Revenue Service will be notified automatically by the Social Security Administration concerning your name change.

You will need to go to the Registry of Motor Vehicles in person to have your license and registration changed.

To obtain a new passport, you will have to fill out a different form depending on the status of your current passport:
• If your passport is valid, you have had it for more than one year, and you were over age 16 when it was issued to you, fill out Form DS-82 and follow the directions for submittal. You will need a certified copy of your divorce decree for this form.
• If your passport is valid, you have had it for less than one year, fill out Form DS-5504 and follow the directions for submittal. You will need a certified copy of your divorce decree for this form.
• If you do not have a valid passport, you will need to fill out Form DS-11. You will need a certified copy of your divorce decree for this form. Additionally, you will need to submit this documentation at an Acceptance Facility or a Passport Agency, and not by mail.

To change your name on the voter registration rolls, you can go to the town hall, or some websites such as www.RockTheVote.com allow for name change submission. You may also be able to do this at the RMV when you update your license.

You might also want to change your name at the Post Office. You can do this in person, or online.

Finally, regarding actually obtaining a divorce decree, the court does not automatically send you a copy of your official absolute divorce decree (the final decree that becomes available 90 days after the issuance of the Judgment of Divorce Nisi). You can obtain a copy by mail or in person at the court. The fee for a certified copy of the divorce decree is $20, plus $1 for each page except for the first. You can call the court and ask how many pages it will be, and mail in the appropriate payment.

Modification under the Alimony Reform Act of 2011: Updated Flowchart.

noreply@blogger.com (Kelsey & Trask, P.C.) — Wed, 28 Dec 2011 16:54:00 +0000

The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011. You always have the ability to reach an agreement for modification, but in the event that you and your ex-spouse disagree about whether a modification order should be changed, this chart can help you figure out whether a court will change your order.

The new law becomes effective March 1, 2012 but to prevent a rush to the courthouse steps, the Act provides for delayed implementation of some of the provisions. The dates are as follows:

March 1, 2012 - the Act takes affect for current cases; previously adjudicated cases can be modified if the recipient spouse is cohabitating as defined in the statute;

March 1, 2013 - Modifications allowed for marriages of less than 5 years or if the payor will reach Social Security Retirement Age by March 1, 2015;

March 1, 2014 - Modifications allowed for marriages of less than 10 years;

March 1, 2015 - Modifications allowed for marriages of less than 15 years;

September 1, 2015 - Modifications allowed for marriages of less than 20 years.

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

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Click here for more information about Modifications in Massachusetts.

It's Our First Holiday Season After the Divorce: How Do We Make It Easier on the Kids?

noreply@blogger.com (Jonathan R. Eaton) — Fri, 23 Dec 2011 14:00:00 +0000

The holiday season is usually thought of as being a time to exchange gifts with loved ones, and gathering with friends and family. For families transitioning through a divorce or separation, the holidays can mark a melancholy season. What once was a time to spend with family has now taken on a new form. For divorcing or separated couples with children, the holidays are now a time where the children are being shuttled to and from different parents' homes instead of spending the whole time with both parents together.

While we are not therapists, we recognize the stress that is unique to divorcing couples with children. Family therapist Carleton Kendrick, Ed.M., LCSW, wrote on Family Education's blog about how parents can approach the first separate holiday season with their children. Below is his advice and highlights:

Show them you understand their feelings and worries: "I know you're going to feel sad sometimes this Christmas and maybe a little angry and worried too. It's going to feel different not being together like we have been. Things will be different this year."
Offer them encouraging words: "You know, we all know how to have a good time together at Christmas. Your dad and I are going to think about all those good times, and we'd like you both to think back to them too. Even though it won't be the same, I know we can all enjoy each other at Christmas time and that your dad and I can each do some fun things with you over vacation. It's not going to be the same but we're going to make it good."
Be cordial with your ex over the holidays. Your behavior during this traditional family time can provide your kids with some hope that you two can and will be cordial with each other in the future.
Talk with your ex about gifts so your children won't be overindulged or let down.
Your kids are old enough to ask directly how they want to celebrate the holidays, given your changed family structure. Asking them what they want to do can lead to a natural discussion of what they're thinking and feeling.
Create some new holiday traditions that your kids can look forward to doing with you. Encourage your ex to create his own different traditions as well.
Keep all extended family, grandparents, etc. involved during the holidays (even if it can only be through email, cards, phone calls). They are still an integral part of your children's lives and provide them with continuity and security in the face of your changed family structure.
If you have done so before, continue to help your children select a present for your ex.
Don't communicate negative feelings about your ex through your words or behavior. Your kids will be taking their cues from the both of you.

Should I Sign My Divorce Agreement?

noreply@blogger.com (Jonathan R. Eaton) — Thu, 22 Dec 2011 15:00:00 +0000

Many individuals come to our office having gone through mediation with their soon-to-be-ex-spouse, asking us to review the separation agreement that they have negotiated. Whether we ultimately advise a client to sign a proposed agreement or not depends on the contents of the document and the individual's particular set of circumstances,

1. Has the marriage been irretrievably broken down with NO CHANCE OF RECONCILIATION?
2. Does the Agreement completely resolve all issues relevant to the marriage in a fair and reasonable manner?
3. Is this an agreement that you can live with?

In the end, it is not our life but yours, and the divorce agreement will govern some important aspects of your life in the future, especially when there are children involved. Being able to "live with a divorce agreement" means not only being happy or satisfied with it, but also being able to perform any of the agreement's obligations. If the agreement is not something that you can live with, and/or live up to, you might find yourself back in court in the near future.

When we draft agreements to propose for settlement, and when we review proposed agreements brought to our office, we believe it is necessary to gauge both the fairness of the agreement and the likelihood of our client falling into contempt. Ultimately, whether the agreement is fair and reasonable is up to you, but if we don't think you can afford the commitments you are making we will not give the proposal our endorsement.

While there are certainly legal implications to the various parts of a divorce agreement, if you are satisfied that you understand and can meet the commitments you are making, then you must still ask yourself if the agreement is something that you can live with. The goal of a divorce agreement should be transitioning to the next stage in your life, and avoiding a return trip to court.

The Financial Statement and the Importance of Honesty

noreply@blogger.com (Jonathan R. Eaton) — Tue, 20 Dec 2011 15:00:00 +0000

As part of any family law case in Massachusetts (including divorce, paternity, child support, modifications, etc.), Massachusetts Supplemental Probate Court Rule 401 requires that each party file a complete, true, and accurate financial statement. For individuals earning less than $75,000 per year, their financial statement is the "short form." Individuals earning more than $75,000 are required to fill out the "long form."

A surprising number of individuals don't take the financial statement seriously, only to be surprised when their financial statement is scrutinized by the opposing party or the judge. When we receive a financial statement prior to a court hearing, we compare the income versus the expenditures, as well as to any previous financial statements. In addition, we review whether the opposing party has listed items such as interests in trusts and businesses, digital assets, patents, valuable collections, and whether the reported income is consistent with previous tax returns and loan applications.

When you sign a financial statement, you are signing under oath that it is complete, true, and accurate. When the opposing party shows the judge that your financial statement is misleading, your credibility comes into question. As countless grade school teachers have lectured, honesty is the best policy.

Is there NO CHANCE OF RECONCILIATION?

noreply@blogger.com (Kelsey & Trask, P.C.) — Mon, 12 Dec 2011 16:14:00 +0000

California Attorney Mark B. Baer started another great discussion on a LinkedIn group I belong to entitled:

ARE THERE OTHER FAMILY LAW ATTORNEYS WHO TRY AND HELP THEIR CLIENTS TO IMPROVE THEIR MARRIAGES BEFORE DISSOLVING THEM?

The answer is yes, and here were my comments in response to this discussion:

In Massachusetts the standard for a no-fault divorce is irretrievable breakdown and the party (or parties) requesting the divorce must testify under oath that their marriage has irretrievably broken down with no chance of reconciliation. Whenever I provide an initial consultation, I ask that question very seriously and slowly, emphasizing the "no chance of reconciliation." In many cases it is clear that the potential client hadn't considered their desire for a divorce from that standpoint, and in many cases they have difficulty stating that there is no chance of reconciliation.

Because of the hesitation that so many potential clients show, I always inform them that I am not in the business of ending marriages, but rather in the business of helping dissolve the business partnership of a marriage when spouses have already come to the decision that their marriage is over. I am also not trained as a therapist, and so I recommend that if they are not sure about their decision, that they consult with a therapist either individually or as a couple before deciding whether to move forward with a divorce.

Any attorney that doesn't ask that question, in my opinion, doesn't understand that the role of a family law attorney is different than in other areas of the law. We have to be sensitive to the fact that the decisions and positions we help advocate for have impacts far beyond the courtroom, both on the emotional well-being of our clients, and especially on their children.

- Justin L. Kelsey, Esq.

Visit the Office of the Future in the World of Tomorrow!

noreply@blogger.com (Kelsey & Trask, P.C.) — Sun, 11 Dec 2011 19:17:00 +0000

Thanks to FirmFuture presenter Gabriel Cheong for inspiring us to make better use of our iPad in the office.

Now when you schedule an initial consultation we can use our iPad, displayed on the flat screen TV (pictured above), to show you:

how to calculate Child Support or Alimony online
how to create Parenting Plans online
how calculate the cost of Bankruptcy online
or evaluate the length of time a Bankruptcy will take online.

And if you want any of the information printed out so you can take it home, our new laser HP printer can print directly from the iPad right in our conference room, using WiFi magic.

These are just some of the ways that we are trying to design our new office, at 160 Speen St, Suite 202, Framingham, MA, to be as friendly, convenient and useful to current or potential clients. If you are interested in checking it out, give us a call at 508.655.5980 or set up an appointment online here.

Is my iTunes Account a Marital Asset?

noreply@blogger.com (Jonathan R. Eaton) — Thu, 08 Dec 2011 15:00:00 +0000

In Massachusetts, everything that either party to a divorce action owns or owes, regardless of whether it was acquired during the marriage or not, is subject to division in a divorce case. How it might be divided is a different question, but in order for that evaluation to happen, all assets and liabilities must first be disclosed. Massachusetts requires individuals involved in divorce cases to submit financial statements disclosing all of their assets and liabilities within 45 days of opening a divorce case.

The assets to be listed on a financial statement are to include everything. This includes the most commonly thought of assets, such as physical assets (artwork, automobiles, jewelry, houses, etc.) and financial accounts (bank, investment, stock, retirement, etc.). This disclosure should also include items which you might not think about as assets.

One example of an asset that many people don't typically think about is their frequent flyer miles, which was parodied in the beginning of the movie Wedding Crashers (warning: link includes profanity).

In the digital age there are other digital assets (such as a significant iTunes library) which you may also not think of as a typical asset, but which should be disclosed. These are becoming more common as digital libraries can now include, games, movies and even books. A recent article on TechCrunch, What If You Could Legally Resell Your Digital Music? ReDigi May Have Found The Solution., suggests that companies may start brokering digital accounts, which could result in them being even easier to transfer, and therefore more similar to a traditional (non-digital) asset. Essentially your iTunes account of 200 CDs would be similar to actually owning 200 CDs. Of course, there may be restrictions on transferring these assets and any agreement should be mindful of recent legal decisions concerning the distribution of digital copyrighted materials.

While, a digital asset is subject to division in the resolution of a divorce case, they will not always have significant value and may be a non-issue. Failing to disclose an asset, however, could be a significant issue and open you to criticism and possible fraud or perjury allegations. Therefore, when completing your Financial Statement we always advise, err on the side of disclosure even if you have to include explanatory footnotes regarding value or restrictions on transfer.

To read more visit our post: The Financial Statement and the Importance of Honesty.

Does the Staggered Duration Formula for Alimony Mean that Lawyers Will Encourage Potential Clients to File for Divorce?

noreply@blogger.com (Jonathan R. Eaton) — Tue, 29 Nov 2011 15:30:00 +0000

Hopefully not! However, it does make anniversaries more important than they already are.

Under the Massachusetts Alimony Reform Act of 2011, which becomes officially effective on March 1, 2012, general term alimony will now have a time limit, determined by the length of the marriage.

For marriages lasting 5 years or less, general term alimony will last no longer than one-half of the number of months of the marriage.
For marriages lasting more than 5 years but less than 10 years, general term alimony will last no longer than 60% of the number of months of the marriage.
For marriages lasting more than 10 years but less than 15 years, general term alimony will last no longer than 70% of the number of months of the marriage.
For marriages lasting more than 15 years but less than 20 years, general term alimony will last no longer than 80% of the number of months of the marriage.
For marriages lasting more than 20 years, the court may order that general term alimony will last indefinitely.

There are circumstances that would justify a deviation from this staggered scheme, such as the recipient spouse co-habitating with a significant other, and the death of either spouse, and I would encourage you to speak to an attorney if you have questions about the Alimony Reform Act of 2011.

The staggered scheme creates a jump in the duration of an alimony order for each five years of marriage. This creates a dilemma for individuals who are approaching a five, ten, fifteen, or twenty year anniversary and are struggling with whether to seek a divorce. Waiting until after one of these pivotal anniversaries, should their situation be one where alimony is later awarded, would result in paying alimony for a longer period of time.

This puts attorneys in an uncomfortable position. Any respectable family law attorney would never advise or encourage an individual that is struggling with the decision of whether to remain in a marriage and commit to repairing any existing damage to get a divorce. For individuals that come into our conference room for an initial consultation, walking through our door is often one of the most difficult decisions that they have made. It is not the attorney's job to make that decision any more difficult.

The dilemma lies with individuals who are seeking legal advice but have not yet made a final decision as to whether they will file for divorce. Part of our job as attorneys is to inform our clients, and potential clients, what the law is. With the staggered scheme for calculating the duration of alimony, this means that remaining married past a five, ten, fifteen, or twenty year anniversary could result in a longer alimony order. It is up to the individual whether this is a tipping point for filing, or just a consequence of not yet being sure whether their marriage is over.

Does Reducing and Limiting Alimony Force Primary Caretakers into the Workforce?

noreply@blogger.com (Jonathan R. Eaton) — Mon, 28 Nov 2011 15:55:00 +0000

When a child is born out of wedlock, either parent may initiate a court proceeding to establish certain rights and obligations that come with raising a child. Such rights include visitation, the ability to make significant life decisions for the child, and child support. The purpose of child support is to provide a measure of financial security for a child from a parent that might not be living with the child full-time.

When a child is born into a marriage that later dissolves, child support may be ordered, and usually is. The purpose of child support for children born into a marriage, or out of wedlock, is identical: to provide for the financial costs of raising a child.

However, when marriages dissolve, the finances of the couple might be such that a court will order alimony as well. The purpose of alimony is to provide for the financial well-being of a former spouse. The issue of alimony always has been, and will likely always be, controversial. The rationale behind it is that in a marriage, both people contribute in (ideally) complementary ways. When one spouse devotes time to furthering his or her career, it is (ideally) with the contribution of support from the other spouse. For example, if one spouse is picking up extra hours at work to get a promotion, he or she is doing so while his or her spouse is taking care of the home, or the kids. Often times, one spouse is not as able to further his or her career while their partner does. When the marriage dissolves, courts want the spouse who was not as able to further his or her career to smoothly transition into a financially independent unit, and the tool through which this is accomplished is alimony.

In Massachusetts, alimony is still officially a matter of great discretion for judges. The Alimony Reform Act of 2011 does not become effective until March 1, 2012, although many judges are issuing orders consistent with its new limits. The Act, for the first time in Massachusetts, creates a formula for calculating alimony, much like the existing child support guidelines in Massachusetts. One of the more important provisions of the Alimony Reform Act is that no income included in the calculation of child support will be then included in a calculation of alimony. The child support guidelines in Massachusetts are limited to a combined income of $250,000. Thus, unless the combined income in a marriage where there are minor children is more than $250,000, absent circumstances that would convince a judge to vary from the formulas, there will be only child support and no alimony order (provided that the lesser earning spouse is the primary caretaker of the minor child or children -- judges still have a good deal of discretion, and I would encourage you to speak to an attorney if you have any questions or concerns about your specific case).

This muddies the waters a bit from the varying justifications for child support (provide for the child) and alimony (provide for the former spouse). One justification for this is attrition. For couples earning less than $250,000 combined, there is usually not enough income to justify both child support and alimony. What the court will label as "child support" (and the IRS and Department of Revenue will treat as "child support") does assist the primary caretaker into transitioning into a financially independent unit.

However, it is not enough to provide for the economic quality of life enjoyed during the marriage. When a couple divorces, the expenses once shared (one home, one electricity bill, etc.) are now separated. Now there are two homes to pay for, and two electricity bills. Even if the combined income stays the same, the combined expenses will increase. For many individuals, receiving child support will not be enough. They will need to transition back into the workforce, or focus more time on increasing their income to meet their expenses. The "child support" will provide a measure of financial security to the recipient spouse as he or she transitions to devoting more energy towards furthering his or her career. This, unfortunately, comes at the cost (usually) of spending time at home with the children.