Divorce Questions

What is reckless endangerment of a child under Massachusetts law?

When applied to children, it’s putting a child in grave danger due to negligence of a particular act. In the state of Massachusetts, it usually works under two different legal scenarios. The first is the act of creating the risk, and the second is not doing anything to prevent that risk.

Creating Substantial Risk

The first half of the Massachusetts reckless endangerment law needs to be proven in court before any injury claims may be made. Evidence needs to prove that the person who created the substantial risk to a child under 18 did it in a way that caused severe bodily injury. Those injuries could be from driving recklessly in a vehicle to sexual abuse.

[Read more…]

Am I Entitled To My Wife’s Inherited Property As Part Of The Division Of Divorce Assets?

Massachusetts is known as an equitable division state wherein the Court under M.G.L.c. 208 §34 considers a number of factors in dividing up the estate.  Among those factors are the length of the marriage, the conduct of the parties during the marriage, the age, health and station, occupation, amount and sources of income, vocational skills, employability future estates, liabilities and needs of each party.

It doesn’t matter if you were the primary wage earner or your contribution was that of a homemaker, the Court will look at all factors.

As it pertains to inherited property, the Court looks at when the inheritance came into the marriage, the length of the marriage and the possibilities of future acquisition of assets from other sources.  While there is no set formula, there are some judges that will grant the spouse who doesn’t inherit 1.5% for each year of the marriage.  However, it should be noted that judges have a fair amount of discretion and as long as they don’t abuse that discretion, they won’t be overturned.

How Much Of The Marital Assets Am I Entitled To Keep Upon Divorce In Massachusetts?

Massachusetts is known as an equitable division state wherein the Court under M.G.L.c. 208 §34 considers a number of factors in dividing up the estate.  Among those factors are the length of the marriage, the conduct of the parties during the marriage, the age, health and station, occupation, amount and sources of income, vocational skills, employability, future estates, liabilities and needs of each party.

It doesn’t matter if you were the primary wage earner or your contribution was that of a homemaker, the Court will look at all factors.

Generally speaking, if the marriage is a long term marriage and most of the assets were acquired during the marriage, the Court will look to divide up the assets equally.

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…]

My Spouse Was The Breadwinner In Our Household So All Of The Assets Are Held In His Name. Am I Entitled To Half Of The Value In Massachusetts?

It matters little to the Court who has title to the assets.  If an asset was acquired during the marriage, it will be deemed marital property despite the asset being in one name or another.  Often time, people think that they can set aside the asset because it is in a trust, but that is not the case.  The Court looks at both the legal and equitable owner of assets, as well as when the asset was acquired.

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 do I get a divorce when she is out of state?

Additional Information:  How would I go about getting a divorce when she lives in another state and I live in Massachusetts? I sent her money to file for divorce but she never did. I am now ready to take the steps to do this myself.

Answer:

This question involves the somewhat complicated issue of jurisdiction. Generally so long as you were married or last lived together in Massachusetts and you are a resident, you can file a complaint for divorce here. You would have serve your wife the complaint through a sheriff or constable in the state where she resides and she would then be subject to the jurisdiction of the Massachusetts courts. Another alternative would be to hire a lawyer in the state where your wife resides and file a complaint for divorce there. Generally this would not be advisable as you will have to that state whenever there is a matter before the court. Ideally you should speak to a Massachusetts divorce lawyer who can help guide you through the process.

Is there a temporary modification to divorce agreement?

Additional Information:

As part of our divorce agreement I am responsible for providing health insurance for my ex-wife, and our children.  I just got laid off and it’s going to be difficult making ends meet.  After paying rent for my home in Marlborough, COBRA will be my second biggest expense.  Health insurance is available through her employer and is definitely less expensive than COBRA.  Can I request at least a temporary modification order?

ATTORNEY ANSWER:

The most important question to ask is whether or not your agreement is modifiable. If it is, you can have your attorney file a complaint for modification based on a material change of circumstances. The modification complaint would be on the sole issue of whether there was a material change in circumstances that would warrant a revision of the separation agreement.  [Read more…]

Ex spouse just received promotion, am I now entitled to alimony?

Additional Information:

My ex-wife and I got divorced just over 2 years ago.  She was recently promoted to partner at her Westborough law firm.  She now makes significantly more money than I do.  I supported her as she was studying to become a lawyer.  Am I now entitled to alimony and if so, what is the process to modify the divorce agreement?

ATTORNEY ANSWER:

There are two components to your question that need to be addressed. First, you should have an attorney review the agreement to determine if there was a waiver of future alimony and second the agreement must be viewed to determine whether it survives as in independent legal contract or if it is modifiable related to the issue of alimony. As you probably know Massachusetts has enacted a new alimony law which defines when alimony is warranted and for how long. It is important to review this law to understand how a judge might rule in your case.  [Read more…]

How do I modify a restraining order to have contact with my wife?

Additional Information:

Is it a violation of a protective order in MA to discuss matters with protected party if attorneys are present?  I have recently been served a restraining order which does not permit me with any contact with my wife, however, there are many things I would like to discuss, involving the children, reconciliation, therapy and counseling.  Do I need to file a motion to seek peaceful contact?  Would it help if my attorney or other party was there?

ATTORNEY ANSWER:

Yes, you would seek to modify the restraining order so as to allow you to either meet with her or communicate. This can be easily done by going to the court that issued the order and seeking to modify so as to allow contact.  [Read more…]

How do I protect myself and my child from abusive boyfriend?

Additional Information:

I recently filed charges for 2 incidents of domestic violence.   One of the incidents was about 6 months ago, the other was last weekend.  My live in boyfriend grabbed my throat and pushed me down a flight of stairs. I didn’t report the first incident because I was scared and he threatened to hurt my daughter if I told anyone.  How do I protect myself and my daughter?  We rent an apartment in Leicester. Will the landlord be required to change the locks?

ATTORNEY ANSWER:

The incident that you described is very serious and you should work first with your local police to get the protection that you need. Not only should you be getting  a restraining order, criminal charges should be pursued through the police for the assault and battery. You should also, as part of the restraining order, get a support order. The next thing that you should do is to hire an attorney and pursue custody and support orders in the Probate Court.  [Read more…]

Will my husband get half of this asset when we divorce?

Additional Information:

When my husband and I got married, instead of a having a big expensive wedding, my parents gifted me about $30K.  We ended up putting the money toward the down payment on our home in Shrewsbury that we bought together.  I am now filing for a divorce, will my husband get half of this asset?

 ATTORNEY ANSWER:

The key to your question is that they gifted the property and as such have made no condition of repayment. Judges in divorce actions attempt to divide up the marital assets in an equitable manner looking at a number of factors including the length of the marriage, the source of the asset and the contributions of the parties.

The judges are required to review many factors and as such you should certainly hire an attorney that works in the area of matrimonial law.   [Read more…]

Can my brother become my son’s gaurdian if I die or can my ex get custody?

Additional Information:

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son.  My question is if I put it in my will that my brother will be the beneficiary of my home in Northborough and become guardian of my son if I die, will that happen or can my wife get custody if she wants?

ATTORNEY ANSWER:

Issues related to the care custody and wellbeing of children are almost always modifiable on a change of circumstances. Just because you have custody of your son now doesn’t mean that she won’t seek a revision of that at a later time if there is a material change of circumstances. You can put in a provision in your will that you would like your brother to be his guardian but the court may decide who is the best person to have custody based on the best interests of the child.  [Read more…]

How do we handle the financial aspects of a divorce?

Additional Information:

My husband moved out of our Southboro home almost 2 years ago.  We’re on good terms with one another and share custody of our 2 children.  He currently pays for daycare for our son and I’d like to ask him to help with the children’s medical/dental expenses.  We have no assets to divide.

ATTORNEY ANSWER:

Unless and until you have orders from the Probate Court, you do not have anything that is enforceable at law. My advice would be to file a divorce action and seek temporary orders as soon as possible in order to establish the obligations for child support and medical insurance.  [Read more…]

Do we need to get a divorce in MA or can we stay separated indefinitely?

Additional Information:

I left my husband a couple of years ago and moved away (we were married in Marlborough, MA).  When I left, we just needed a break.   We have no kids, I don’t intend to remarry and I’m not on his health insurance or vice versa.  We haven’t kept in touch and I’m wondering if we can stay separated indefinitely?  Does leaving the marriage constitute abandonment or something like that?

ATTORNEY ANSWER:

You may continue to remain married but separated however your legal status would prevent you from legally marrying until you get divorced and being potentially liable for his actions (such as his debt ) until such time as you get divorced. My best advice is that if you don’t intend to get back together then you or he should file for divorce and resolve any outstanding issues in a divorce agreement.  [Read more…]

Will money earned after separation be awarded to my ex?

Additional Information:

My wife and I have been separated for over a year. I am living with a new partner and considering starting my own business. Will my wife have any claim on the monies when we go through the divorce?

ATTORNEY ANSWER:

Until the divorce has been finalized the court may divide up assets even though they may have been acquired after the separation. Therefore you should seek to get the divorce done as soon as you can to protect yourself. [Read more…]

In MA, can child support be modified without going to court?

Additional Information:

My ex and I have agreed to lowered payments and we have drawn up a new agreement which we both signed.  Is what we did legally binding or can she sue me for back child support?

ATTORNEY ANSWER:

The agreement should be filed and approved by the court in order for it to be valid. It would be necessary to file a complaint for modification and then seek to have the agreement brought before the judge. [Read more…]

In Massachusetts, how are assets divided in a divorce?

Additional Information:

We have been married for over thirty years, unfortunately, I now realize that all of our assets are in my husband’s name.  Does this mean that if I file for divorce I will not get anything?

ATTORNEY ANSWER:

Not at all.  It matters little to a Probate Judge whose name the property is in.  Rather, the Judges in Massachusetts try to make an equitable division of all assets and liabilities, which generally mean that the property acquired during the course of the marriage, should be divided equally.

[Read more…]

In long term marriage with aggressive husband, how do I legally protect myself and our children?

Additional Information:

I have been married for over eighteen years and we have two children together.  Since the children were born, we decided that I would stay at home and raise them.  My husband has been getting more aggressive with me and I worry that things may happen.  I do not want to leave the house, as I have no place to go.

ATTORNEY ANSWER:

If you feel threatened or intimidated by your husband’s actions, or if your husband gets violent with you, you should call the police immediately.  They can help you get an Abuse Prevention Order, which will protect you.  You should then call a lawyer that concentrates in the area of Domestic Relations or Divorce.  That lawyer can file a motion for temporary orders to make certain that you get the protection from the Court that you need, as well as making sure that you get adequate child and spousal support.

[Read more…]