How Are Child Custody and Visitation Established?

If you are going through a divorce and have children, child custody is arguably the most important matter you will have to deal with during the divorce proceedings. Although custody arrangements can be reviewed and modified until the child turns 18, it is very rare for custody to be changed from one parent to the other after the initial order has been established. This is why it is important to understand how custody and visitation (more often referred to as parenting time) will be determined.

There are two types of custody, legal custody and physical custody. The parents may share both legal and physical custody, share legal custody but give one parent sole physical custody, or have one parent have sole primary and physical custody. As you will see below, even when one parent is granted sole custody, the other parent will still retain rights to the child.

Legal Custody
Legal custody relates solely to the decision-making rights regarding the child. A parent can have legal custody of a child without having physical custody. The parent with legal custody will have the authority to make decisions about the child’s medical, religious, and educational needs. If one parent is awarded sole legal custody, that parent has the right to make major decisions about the child without consulting with the other parent. If the parents share legal custody, they must discuss the matter with the each other before making any major decision.

Physical Custody
Physical custody refers to which parent the child will live with. Typically, one parent is awarded physical custody, while the other receives parenting time. Although joint physical custody is an option, it is more typical to see sole physical custody awarded to one parent. Usually, joint custody will only be awarded if the parents agree to this arrangement. It is very rare to see a judge award joint physical custody if the parents have not agreed to it. [Read more…]

Obtaining An Annulment in Massachusetts

If you are unhappy with your marriage, you can obtain a divorce in Massachusetts for just about any reason. Regardless, there are those times when a marriage should not even be legally recognized. A divorce will end a marriage, but an annulment determines there never was a legal marriage from the start. Moreover, an annulment may have significance for religious or social purposes. If the marriage was not valid from the beginning, it is possible to receive an annulment.

Do you qualify for an annulment?

In Massachusetts, the marriage needs to be void or voidable. There is a popular belief that you can receive an annulment if the marriage was short. Unfortunately, this is not true. There are specific guidelines for granting an annulment, and the duration of the union is not a factor in Massachusetts. In fact, the requirements are so strict that many eventually choose a no-fault divorce, because it is just easier. [Read more…]

Pets and Divorce. Custody or Property?

Do you think worrying about what happens to a dog or cat, when there is a divorce, is silly? Probably not if you are a pet lover.

When a couple decides to divorce, the question of who gets the pets is very common. Pet lovers do not buy an animal, they adopt a family member. However, while the law focuses on the best interests of human children, it sees pets as personal property. Therefore, courts tend to work under this strict interpretation.

Under the law, asking for custody or visitation rights for pets is along the lines of asking for those rights for a television or microwave. Courts will typically start by deciding if the pet belongs to the couple or an individual. If the pet was acquired or shared during a marriage, then it is ordinarily considered marital property. The court then goes through the same steps as it would other property, such as assigning a value.  [Read more…]

Divorce Modification in Massachusetts

Once a divorce is finalized, the documents are filed with the courts. However, life is unpredictable and circumstances can change over time. In Massachusetts, if an earlier court order or judgment no longer suits the parties because circumstances have changed in a significant way since the order or judgment was issued, the court can “modify” the prior order or judgment.

Cases where a modification might be appropriate include those where the children are significantly older than at the time when the last child support order was issued, or where a person ordered to pay alimony has retired and now has a substantially smaller income than at the time he or she was ordered to pay alimony.

Sometimes a party may want to change an order or judgment because there is a legitimate need to do so, and it would be unfair not to allow a change. For example, when there is a typographical mistake in the written judgment, or when the opposing party lied about the value of a significant asset on his or her financial statement, and the lie influenced the judgment of the court.  [Read more…]

Court Cases Provides Guidance for Child Custody Issues in Same-Sex Divorces in Massachusetts

Massachusetts was a leader in its early recognition of same-sex marriages. Logic dictates that the Commonwealth will also have more experience with same-sex divorce and family law matters, including child custody and support issues in cases involving the dissolution of a same-sex marriage. Three Massachusetts cases do, in fact, reflect that experience.

In a 2006 same-sex divorce case (A.H. v M.P., 447 Mass. 828), one partner never adopted the child of her partner, although she was well aware of the importance of pursuing a formal adoption. Her former partner was the child’s primary caregiver. The court determined that she had no legal right to parenting time and had no support obligations as a “de facto” parent. The result in this case indicates how critical it is for one partner in a same-sex marriage to adopt the other partner’s biological child if the first partner desires to continue to have a parental relationship with that child in the event of a dissolution of a marriage.

A Massachusetts court had previously considered the rights and responsibilities of a “de facto” parent. In a 1999 case (E.N.O. v. L.L.M., 429 Mass. 824), the court determined that an adult who has no biological relation to a child, but who has participated in the child’s life as a member of his family, may be entitled to parenting time and visitation rights following dissolution of the relationship. The “de facto” parenting standard is thus a function of the facts of each specific case. A same-sex parent who does not actively participate in a child’s upbringing while a marriage is intact will have little opportunity to continue any relationship with that child after the marriage dissolves.  [Read more…]

Is Collaborative Law Right For Your Divorce

The emotional repercussions of the breakdown of a marriage make divorce one of the most complicated of all legal processes. However, complicated court appearances and stressful litigation is not always necessary. For those that are comfortable with settling out of court, collaborative law is an option. There are many experienced attorneys throughout the state of Massachusetts that at  are well-practiced to serve individuals in this regard.

What is Collaborative Law and is it right for you?

Simply put, collaborative law is a non-adversarial a means of settling all aspects relative to dissolving a marriage without any court appearance or intervention. Rather, the parties will take part in several meetings with professionals of varying specialties to come to a mutually agreeable settlement arrangement. Again, it is important to understand that this option is for spouses who are non-adversarial, meaning that the parties are not fighting to “win” an advantage, as further outlined here. If you believe that you and your current spouse are willing to proceed through the negotiation process with respect for one another, and with the understanding that any solution needs to suit all involved as best as possible, including any children of the marriage, then collaborative law could be the answer for you. Each of the individuals involved must also be willing to disclose any financial and personal information to determine the most lawful and proper settlement outcome.

In addition to reducing stress by avoiding court involvement, collaborative law is also more cost-effective. When spouses are not in agreement, excessive time and resources will almost inevitably be used.

If you are ready to take an active role in your divorce settlement and feel that Collaborative Law may be right for you, you may contact our office directly or review information from the Massachusetts Collaborative Law Council to find a qualified attorney.

What You Need to Know About Child Custody in Massachusetts

Divorce is described as one of the most stressful events in a person’s life. Add children to the mix, coupled with questions of custody, support, and visitation, and emotions and stress can reach a breaking point. Wading through this difficult time calls for the help of a professional such as a divorce & family law attorney who also understands laws specific to Massachusetts.

Before you meet with an attorney, here are few pieces of information about child custody in Massachusetts that you’ll need to know in order to develop questions pertaining to your situation.

Two primary forms of child custody in Massachusetts

Physical custody determines where a child will live during certain periods of time.

Legal custody determines which parent has authority to make major decisions as in the doctor the child sees, the school the child attends, and even in which faith to raise the child.

Sole vs. shared custody
Sole physical custody means a child lives with one parent who is ultimately responsible for the child’s day-to-day supervision. The other parent is allowed reasonable visitation unless the court rules that this would not be in the child’s best interest.

Shared physical custody allows both parents a shared responsibility in raising the child while the child resides equally with both.

Sole legal custody gives one parent all rights and responsibilities to make major decisions in the child’s life. [Read more…]

Ways to Discover Hidden Assets During a Divorce

Despite complications to the marriage, most people enter the divorce process believing their soon to be ex-spouse is an honest person. However, this is not always the situation. The fact is, dishonesty is a common reason for seeking a divorce. Regardless, even if you have no reason to suspect your former partner is a liar, there is still good cause to be curious and concerned about their finances heading into a divorce.

Once a divorce begins, many people will do whatever it takes to conceal and hold on to what they believe is their money. Moreover, some will even create secret accounts, or perform other financial actions, during the course of the whole marriage. Discovering these hidden assets, during a divorce, is the only way to ensure you receive a fair settlement.

You should never rely entirely on your spouse’s financial affidavit. The good news is an experienced divorce attorney has many tools at their disposal often including a forensic accountant or other investigators and can uncover most everything during the discovery process.

In today’s world, many couples have very complicated and difficult to understand financial portfolios that may include retirement plans, stocks, vacation properties, and more. Regardless, deception is often easily discoverable. The hiding places are predictable. These are some of the more common:

1. Family and Friends – Your ex-spouse may conspire with family or good friends. This is often done by making payments for imaginary items or services, then getting reimbursed after the divorce. An experienced attorney will scrutinize payments made by both personal and business accounts.

2. Fake Employees – Having a fake employee on the payroll is a common technique for concealing the money generated by a business. While your ex-spouse may think they are being slick, an audit of their payroll will uncover the truth.

3. Unreported Income – Does your ex-spouse work in a cash business? Some people believe they can keep their true income hidden by excluding revenue from their financial statements. However, lifestyle costs often reveal the truth.

4. Collectibles – One way to hide money is investing in antiques and artwork, or even comic books and baseball cards. These items are often bought over the course of the marriage, and then the value is under-reported during the divorce.

5. Delayed Compensation – Your ex-spouse’s stock options, raises, and bonuses are all included in a divorce. However, if your ex-spouse has a friendly boss, they can conspire to delay promotions or payments of bonuses.

6. Custodial Accounts – One of the most devious methods of hiding money is setting up a custodial account in the name of one of their children. While this is hiding assets from the court, they are basically gifting the assets to their child. This can mean, if they eventually take the money back, they are stealing.

[Read more…]

What to Do if You Aren’t Getting Visitation with Your Child

If you are the non-custodial parent, not being able to spend time with your child on a daily basis can be painful. Regular visitation should help, but if the other parent is not cooperative or if you have not been granted visitation, you could be wondering what steps you need to take in order to spend more time with your child. An attorney who is experienced in Massachusetts divorce and family law can help.

The next steps depend on your situation. If you have not been granted visitation with your children, then you and your attorney will need to go to court to modify the child custody order that is currently in place, or you may need to petition to have a child custody order made if there isn’t one. These are both things that a family law attorney can help you with.

On the other hand, if a judge has ordered that you are supposed to get visitation with your child but the custodial parent is not cooperating, you will need to petition the courts to ensure that the child custody order is followed. It can be challenging to deal with a custodial parent who is not willing to budge, but it is important to follow the proper legal procedure in order to obtain your desired outcome.

If you want to see your kids, you should be able to, even as the non-custodial parent. Whether you need help with child custody or other aspects of your divorce, we can help. Please call our office to schedule a consultation with our family law attorneys.

Divorce and The Best Interests of the Child

When you’re going through the divorce process and managing the child support and custody issues, you’ll hear the term “best interests of the child.” Generally, the court will consider the new family lifestyle after a divorce and where the court feels the child will best be able to adapt to the new changes. It is possible for you and your spouse to ease into your new family dynamic in order to make the transition easier on your child.

Amicable Relationship

In order for you and your spouse to best help your child through the divorce process, they should maintain an amicable relationship. While that may not be easy, especially at first, this is beneficial in helping your child’s transition into this new way of life. It’s best to avoid contentious debates about visitation, child support, visitation and other child-rearing issues. [Read more…]

What Can Be Modified in Your Massachusetts Divorce Agreement

Having the provisions of a divorce agreement modified under Massachusetts law is possible, based on how the separation agreement was written and the circumstances bringing about the request for a modification. Before bringing your modification request to the court, you need to consult with an experienced divorce attorney.

The first thing to realize is that there must be a material change in circumstances to request a modification, such as an employment change, a significant change of residence, or change in income. These changes can affect custody agreements and spousal and child support.

When drafting a separation agreement, there are two types of provisions addressed in the agreement: surviving and merging. Merging provisions are open to modification. Merging provisions are generally child specific issues like custody arrangements, support, and health insurance. Sometimes alimony can be a merging provision. Surviving provisions are generally not open to modification. An example of surviving provision is the division of property. [Read more…]

Massachusetts Child Support Law

In a Massachusetts divorce, one parent may be ordered by the court to pay child support. Under Massachusetts law, both parents are required to support their children—and this is true regardless of marital status (whether the parents are married, divorced, separated, or were never married). The parent the child lives with is termed the custodial parent. The noncustodial parent may be required to pay child support.

Massachusetts child support law is complicated, but there are several things you should know.

One, child support may be used to pay for housing, food, clothing, education, and insurance and medical costs. [Read more…]

Who Has Child Custody When Parents Are Separated

Making the decision to separate from your spouse is difficult and often occurs over a lengthy period of time. During that time, it’s common for spouses to begin living in separate households. If the partners have children, this raises many questions about where and with who the children should live.

Massachusetts law has put in place some very distinct laws to handle this sort of child custody dispute.
If the parents are not married, the mother automatically has sole legal and physical custody until a court orders something else. However under Massachusetts law, if the parents are married to each other, both parents share legal and physical custody of the children until a court decides otherwise. [Read more…]

Divorce Modifications in the State of Massachusetts

When the terms of your divorce no longer fit your present circumstances, petitioning for divorce modification can help alter the terms accordingly. In the state of Massachusetts, overturning a divorce decree requires an appeal. This process is often drawn-out because one appellate court will need to overturn a lower court’s decision. These appeals are usually unsuccessful except in the case of exceptional and compelling circumstances. These are common examples of situations that warrant a divorce modification. [Read more…]

Contempt and Enforcement of Family Law Court Orders

When a divorce decree is finalized by the court, the decree often contains specific orders to one party specifically called court orders. These orders may include payment of child support or spousal support or a transfer of property to one spouse. The courts may also order specific visitation schedules for the non-custodial parent. Too often, former spouses may elect to ignore these orders which can create numerous problems. The penalties to the offending party for these transgressions can be severe but oftentimes the party who is being harmed needs to file a claim in order to call the court’s attention to the situation. Your family law attorney may suggest you file a contempt of court case against the offending party.

What do I have to prove?

Before you can file a contempt of court charge against the person who is violating a court order, there are certain conditions that must be met. You will have to be able to prove to the satisfaction of the court some of these conditions:

  • The order is valid – a contempt of court case requires the agreement between the partners was ordered by the court and that one person is violating that order.
  • The defendant is aware of the order – in some divorce cases, both parties may not have attended the court hearings. If a judge orders support payments or visitation, the other person has to be aware these orders are in place in order to obey them. In most cases, this can be accomplished by sending a copy of the orders to the other party immediately following a divorce.
  • The person is knowingly in default – if your former spouse calls you and tells you they will not make a support payment or that you cannot see your child, this is clear evidence they are knowingly violating a court order.

[Read more…]

Child Custody and Visitation in Massachusetts

Divorce can be a stressful time. When children are involved, the experience can be even harder. Figuring out where the child or children will live often transitions into disagreements and arguments, particularly if both parents want sole custody of the children or if one parent feels like he or she is not getting fair visitation rights.

Massachusetts law concerning child custody and visitation is pretty clear-cut. First of all, if the parents were married, unless a judge has said otherwise, both parents temporarily share custody of the child until a permanent decision is made by the court. If the parents are unmarried, the mother has sole custody of the child unless a judge says otherwise. Permanent custody of the child can be broken up into four types of custody.

Sole legal custody– One parent has the right to make decisions about major issues such as where the child goes to school, what religious instructions the child receives, and when and how the child gets medical care.

Shared legal custody– Both parents are equally responsible to make decisions regarding things such as the above mentioned major issues in the child’s life. [Read more…]

Massachusetts Child Custody and Visitation Laws

Divorce is rarely easy, and even less so when it comes to custody and visitation arrangements for children. In Massachusetts, the top priority of the courts is to determine arrangements that are “in the best interests of the child”, but that may not always be as straightforward as it seems. This is not the time to try and do it yourself. Instead, seek competent legal representation and hire an attorney.

Massachusetts recognizes shared legal custody, sole legal custody, shared physical custody and sole physical custody. When a couple files for divorce, both parents are automatically granted temporary shared legal custody. This allows both parents to have equal responsibility (and rights) concerning major decisions like medical care, education and religious development. During what can be contentious times, differing ideas about the schooling or religious upbringing of children can surface. Having an attorney can make sure that these discussions and decisions remain on track and comply with the law. [Read more…]

Domestic Violence Laws in Massachusetts

In the state of Massachusetts, domestic violence laws include physical harm or the intent to physically harm, the infliction of fear of physical harm, and involuntary sexual relationship against a family or other household member. This crime is especially serious if the victim was violated by the suspect while a protective order was in place.

Definition of a household member:

  • people who are or have once been married
  • individuals that have children together
  • individuals that are related through marriage or by blood
  • individuals who live together are have lived together, such as roommates

Assault can range from actual physical harm or the intent to commit physical harm against another individual. This means that even a serious threat to commit physical harm can be considered assault. Simple assault is in itself a crime, but in Massachusetts, assault against a family or household member is considered a much more serious offense. [Read more…]

Understanding the Annulment Process in Massachusetts

In Massachusetts, anyone who is no longer happy in their marriage can get a divorce for just about any reason. However, there are some cases where the marriage should not be legally recognized in the first place. In these situations, an annulment may be the best option. Understanding the annulment process in Massachusetts can help determine if this is an option for you to consider.

Who Qualifies
In general terms, couples qualify for an annulment in Massachusetts based on social or religious reasons. Some of the most common reasons for granting an annulment over a divorce include:

  • Marrying a close relative.
  • Fraud.
  • Impotence in one party.
  • Mental incompetence.
  • Presence of a hidden contagious disease.
  • One party is already married.
  • One party is underage and unable to consent.
  • Coercion.

As long as you can prove one of these situations, you may be granted an annulment. However, some of these situations have additional requirements, and consulting with an experienced family law attorney may be your best option. If your situation doesn’t fall into one of these primary categories, you may still consult with an attorney to find out if you qualify. [Read more…]

Discovery Process in Massachusetts Divorce

When deciding to pursue a divorce in Massachusetts, certain processes must be completed by each party in an effort to fairly divide marital assets and debts. Financial disclosure procedures play an integral part in the divorce process. The information gathered by disclosures can affect the outcome of a divorce, and according to Massachusetts law, these rules must be followed exactly to ensure each party receives what they are due.

Financial Statement Long Form
If you or your spouse’s salary exceeds $75,000 a year in gross income, you must complete the Financial Statement Long Form. The long form is substantial, and it will take some time to properly fill out. This form will require you to provide proof of income from a variety of sources. For instance you must disclose base salary information including any overtime you preformed, tips you made, bonuses paid, or commissions from sales. In addition, information must be provided regarding self-employment, funds from disability or Welfare, and interest made on investment accounts. The Long Form will also require you to disclose your debts such as business expenses and deductions for household utilities and health insurance. [Read more…]

Filing for divorce in Massachusetts

The legal process of divorce in Massachusetts can be complicated; therefore, it is in the best interest of each individual to consider hiring an attorney who focuses on Massachusetts divorce and family law, even if the divorce is considered “uncontested.” Before filing for divorce in Massachusetts you will have to consider the following:

 Residency Requirements
In Massachusetts, the couple must have lived as spouses in the state in order to petition for divorce. If the cause of divorce happened within Massachusetts, one spouse must be considered a resident of the sate. If the grounds for divorce occurred out of the state, the plaintiff must have lived in Massachusetts for the period of one year prior to filing for divorce.

 What is Considered Fault Grounds for Divorce
Fault grounds for divorce within Massachusetts can include, but are not limited to:

  • Adultery
  • Spousal/child abuse
  • Alcohol or drug dependency
  • Financial and emotional neglect of a spouse
  • Marriage is considered “irreparable”
  • One spouse has deserted the marriage for at least one year prior to filing
  • One spouse has been incarcerated for 5 years or more

[Read more…]

Should You File as a Fault or No-Fault Divorce in Massachusetts?

Massachusetts divorce has specific rules that differ from some other states, specifically in two varieties of divorces. Filing for “no fault” or “fault” divorces might sound as simple as they sound. Regardless, both may not always be simple with “fault” divorces always being the most complicated.

Some of the details involved can make even a “no fault” divorce more complicated if there isn’t a specific reason behind a marital split.

The “No-Fault” Divorce

These type of divorces are easier in Massachusetts because they’re non-contested cases. It’s when a couple amicably agrees that neither one is to blame for the divorce despite knowing the marriage is over. When there’s a fortunate enough situation where there’s no contention, these type of divorces can usually be completed within a few months. But the court may contest such a move if there isn’t a clear reason behind whats deemed “irretrievable breakdown of marriage.”

That’s when “no fault” divorces can veer off into more complicated territory. It’s also why these cases are divided up into two subcategories. The first is when both parties agree to be involved in the proceedings. The second is when only one person in the couple files for a “no fault” divorce and the other doesn’t. A hearing is done six months after filing the complaint and where the other spouse can agree to the divorce or not.
[Read more…]

New MA Child Support Guidelines

Massachusetts has revised the Child Support Guidelines with the new guidelines taking effect on August 1, 2013. The guidelines adjust the formula for child support and provides judges a little more use of their discretion in determining the total amount of income from both parties.

Read the new Massachusetts Child Support Guidelines.

Reasons You May Need a Spousal Support Modification

Years ago, just about anyone could receive spousal support as part of their divorce settlement. However, today, many states, including Massachusetts, have instated more guidelines to determine who will receive alimony. In general terms, short-term marriages will not qualify, though the courts may consider income discrepencies, the health of the parties and other factors in making a final decision. Regardless of that decision, though, there are reasons why you may need to modify the results.

Remarriage
In many cases, if the spouse who is receiving the support marries or moves in with someone else before the alimony period ends, the support should immediately end. However, it is often up to the payer to take the other party to court to put an end to the support officially through the courts. This reason is one of the easiest ones to prove, eliminating the support payments from the date of the marriage.

Failure to Pay
Not everyone will readily pay the amount of money ordered by the court. If your ex has been ordered to pay you spousal support and those payments have fallen behind, it may be time to talk to a lawyer. While you aren’t likely to gain more money from taking your ex back to court over the missed payments, the judge can increase the amount your ex has to pay each month. Garnishment may also be an option to help you obtain the money you are entitled to. [Read more…]

How Is Spousal Support Determined In Massachusetts?

One of the most common questions when going through a divorce is about spousal support. Spousal support is often called alimony, and it is a word that many people hear but don’t quite understand. When you hear about divorces involving famous people, most often there are large amounts of money named. You may hear about alimony payments in the millions when a movie star divorces, or in cases of people who are very rich. But what if you or your spouse don’t earn more than six figures? Does alimony still come into play? The answer is simply that it could. Alimony is based on the financial situation of each spouse.

In Massachusetts, alimony can be awarded to either spouse, and is gender neutral. The judge bases the decision on several factors such as –

  • How long the marriage lasted
  • The age and health of each spouse
  • The income of each spouse
  • Employability or employment of each spouse
  • Any training required for one spouse to find employment
  • The contribution of each spouse to the marriage
  • The standard of living during the marriage
  • Any lost opportunity of a spouse during marriage

[Read more…]

How to Protect Your Credit Through Divorce

Divorce can be very emotional and quite often important tasks fall through the cracks. Protecting your credit is important and should be a priority. Here are a few tips to help you protect your credit through divorce.

1. Take inventory. Pull your credit report to get an idea of everything that is out there. Be aware that some lines of credit may not be reported to a credit bureau. For example, you may have a credit account with your dentist office or other private service provider. Look through past records to try to identify any creditor you may have overlooked that is not on your credit report.

2. Remove your spouse as an authorized user. Your credit report will note who is an authorized user on an account. Leaving your spouse as an authorized user is dangerous. It gives them the authority to charge, but not the responsibility for the debt. You can have them removed by simply calling the credit card company. Additionally, it’s just as important for you to be removed as an authorized user on your spouse’s accounts. If your spouse does not pay, that unsettled debt can be reflected on your credit report. If your spouse refuses to do it, call the credit card company yourself. If they will not allow you to remove yourself, contact the credit reporting agency and dispute their including it on your credit report.

3. Separate joint accounts. This can be more difficult. The details of separating joint accounts will vary depending on the divorce settlement. For example, the person who stays in the house may be responsible for paying the mortgage. If this is the case, it would be best to refinance into the responsible person’s name. If it’s not possible to separate a joint account, add conditions to your divorce settlement to protect yourself. For example, if your spouse is going to miss a payment, they must notify you in advance. It’s not fair for you to make the payment, but doing so will protect your credit. Keep track of those instances so you can recover the funds in court at a later time. Ask the lender to send a copy of the statement to both of you, so you can keep track of any delinquencies. [Read more…]