Divorce Questions & Answers

The facts of your question do not indicate whether alimony was ordered before or after March 1, 2012, which is the date the new alimony reform act went into effect. The language of the court order regarding alimony is the first step in analysis, so you should consult with an attorney to review the separation agreement language and subsequent alimony court order. Under the new Alimony law, the qualification, amount and duration of alimony is outlined. There are also different types of alimony in addition to general term alimony- rehabilitative and reimbursement. If the order preceded the alimony reform act, the time frame for modification may is guided by how long you were married, which is determined by the number of months from the date of marriage to the date the complaint for divorce summons was served in the divorce action. If your marriage was less than 5 years, you can file a modification after March 1, 2013; less than 10 years, but more than 5 years, March 1, 2014; less than 15 years, but more than 10 years March 1, 2015; less than 20 years but more than 15 years- September 1, 2015; over 20 years- reaching full social security retirement age. However, there are other factors to consider such as the continued need for support despite re-employment. "Gainful" employment is a subjective term which is decided by a judge when reviewing all the financial facts. It is important to file and serve a complaint for modification so that you can use the service date in your request for a retroactive reduction/elimination of support- but at the same time, you don't want to file a frivolous action that could also impact you financially.

The issue of how to allocate custody of family pets has been a difficult one for the courts to address. Currently, pets are treated as property and subject to division, as many other marital asset would be divided. Recently, a new state law was enacted and became effective on October 31, 2012, that gives judges the authority to award possession of the pet to the victim of a 209A restraining order. Under this law, the judges can order that the abuser refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming or otherwise disposing of the animal. While the new law does not refer to "custody" of the pet, perhaps it will be the catalyst that changes the way that pets are viewed in the Probate and Family Court. Perhaps we will soon be arguing about the "pet schedule" or pet custody that serves the "best interest of the animal". However, that has not happened yet. Currently, you have the right to make an argument of how you wish the pet issue to be settled. Massachusetts judges are given a fair amount of discretion in making determinations of how assets are divided between parties. You should prepare your arguments and factual basis to support your request that all pets remain together and that you are the best custodian for them. You may be able to negotiate with your spouse a joint arrangement, visitation schedule and allocation of pet-related costs, such as medical treatment, boarding costs and food. It is important that you work with your family law attorney so that creative solutions can be negotiated with your spouse. Good Luck.

 The short answer is yes: child support and alimony can be awarded concurrently. However, the income used to calculate child support should not be used to calculate alimony- so there is not a "double dip". In other words, if the payor earns $150,000.00 per year, then child support could be calculated on the first $100,000; alimony could be calculated on the next $50,000. If the combined earnings between the parents is $250,000/year or less, then the maximum child support is calculated on that amount and it is the judge's discretion to determine how the remainder of the payor's income will be addressed. Tax issues should be considered when allocating child support versus alimony: the allocation of the children as dependency exemptions as well as the fact that child support is non-deductible to the payor, whereas alimony is deductible to the payor. You should consult a qualified family law attorney to evaluate your specific circumstances and to work with you on how best to proceed. Best wishes.

The analysis for dividing property for any couple divorcing in MA works the same way - whether disability is an issue or not. The presumption is an equal division, but it can be a disproportionate division in favor of one party if there are unusual circumstances. One example is a short term marriage where one party was a super- financial contributor. If the parties cannot agree, a judge will review the factors of MGL ch. 208 section 34 to determine whether an equal or unequal division is appropriate in a case. There are about 18 considerations and include factors such as length of marriage, age, earning capacity and contribution to the acquisition of marital assets. Generally speaking, however, the party wishing to retain the house must buy-out the other party's equity in the property. Equity is the difference between the liens held against the property, such as the mortgage and the fair market value. This process includes refinancing the property to remove the other party as a mortgagor. If neither party can afford to refinance and pay the other his/her share of equity, then the house would be sold and the equity divided between both parties---- again with a presumption that the division is equal- unless the section 34 factors indicate otherwise. It is important that you consult with an attorney or that both of you work with neutral mediator to help you resolve all the issues of your divorce. AVVO and the Massachusetts Council on Family Mediation are good sources for qualified attorneys and mediators.

The new Massachusetts Alimony statute went into effect on March 1, 2012. This new law provides guidance for the calculation of alimony and the amount of time that alimony should be paid. If the length of marriage is 10 years or less, but more than 5 years, general term alimony should continue for not longer than 60% of the number of months you have been married, which is determined from the date of marriage to the date your husband is served with the complaint for divorce. However, the duration can be increased if there is evidence if you co-habitated prior to marriage so that your economic partnership actually began prior to marriage. Furthermore, in addition to general term alimony, as I just described, there are two other forms of alimony: rehabilitative alimony and reimbursement alimony. Rehabilitative alimony is a periodic payment of support to someone who is expected to become economically self-sufficient by a predicted time and reimbursement alimony is support for a marriage less than 5 years, which is not your situation. If you have unemancipated children, then the amount of alimony will be adjusted in accordance with the Massachusetts Child Support Guidelines. Finally, tax considerations should be carefully considered, given that alimony is taxable income to you and child support is tax free to you. Also, dependency exemption allocation between the parties is another factor to further complete this analysis. You are right to be concerned that your husband is moving his salary to a private account and incurring debt. Once the divorce complaint is filed and your husband is served with the summons, there is an automatic financial restraining order, which is notice to both of you that you should not be incurring debt outside of usual living expenses and attorney fees. It is imperative that you consult with an attorney who is well versed in family law to determine the best strategy for your case.tab

Massachusetts, as with most other states, is primarily a no-fault state. In other words, in general, the courts do not award punitive damages for adulterous behavior. If her conduct resulted in dissipation of assets or expenditures to pay for the other relationship, then that amount can be added back into the marital estate, which in effect gave her an advance on marital funds that she wrongfully spent. In any situation, alimony is based on the need of the recipient and the ability of the payor to pay. You have a long term marriage and under the new Massachusetts alimony statute, you may be obligated to pay alimony until your full social security retirement age. However, you also have the argument that your wife has the capacity to become gainfully employed and that little or no alimony should be paid. You should consult with a family law attorney regarding your situation and strategies to resolve the alimony issue, which may also impact on division of assets and child support, if you have unemancipated children.

The Commonwealth of Massachusetts does not recognize legal separations. You need to file a complaint for divorce or a complaint for separate support (if you just want support orders, but do not want to obtain a divorce). If you believe you can jointly agree to all the terms of the divorce- ie you keep your assets and he keeps his assets-- then you should file a Joint Petition for divorce with your husband, which is filed along with a Separation Agreement (aka divorce agreement), affidavits of irretrievable breakdown (one for each of you), financial statements (one for each of you) and a court statistical form known R-408. You will need a certified copy of your marriage certificate and pay the filing fee of $215.00. Once you have this package completed, it should be filed with the court with a request for a hearing date. If you are able to gain cooperation of your husband and obtain an uncontested, no-fault divorce, your divorce will be finalized 120 days from the date you go to court to have your uncontested divorce heard and approved by the judge. Good Luck

You should have the constable leave the copy of the complaint for modification and summons, along with any other court documents reflecting court dates, at your ex-wife's last known address. Be sure you get and bring to court a document from the constable reflecting his several attempts at in hand service and the fact he left the paperwork at the front door. Your question does not discern whether the December court date is for your motion to terminate child support or is a pretrial conference date. You could mark a motion for alternative service to be heard on December 7th. Also, when you appear before the judge on December 7th, request that the court enter a temporary order that support be terminated immediately.

Also, the MA DOR also can assist you in termination of child support.

 There is no gender distinction in Massachusetts divorce law. As the saying goes, what is good for the goose is good for the gander. Therefore it really should not matter whether the primary earner is the husband or the wife. However, a divorce judge is given significant discretion in deciding how a marital estate will be divided and whether it is appropriate for alimony to be paid. Once a divorce action is filed, a judge will be assigned to your case and it is important that you and your attorney are prepared to present a persuasive argument that realistically addresses your concerns and desired resolution. A judge will consider the length of marriage and a number of factors in deciding whether there will be an equal division (ie 50%50%)or disproportionate(ie 55%/45%; 60%/40% etc) division of assets or payment of alimony by one spouse to another. Some of those factors include, financial conduct during the marriage, vocational skills, education, employability, health and contributions by each spouse to the acquisition, preservation and appreciation of each party's estates. Your concern about your husband continuing to spend money and drain finances should be addressed as soon as possible and before more irreparable financial dissipation is done. Once a divorce complaint is filed and the other party legally served with these documents, there is an automatic restraining order in place that is supposed to preclude both parties from utilizing marital funds for any reasons, other than to pay for the customary household expenses and attorney fees. You may also have a strong argument that income should be attributed to your husband because of his compelling educational credentials and significant work history.

Depending on the exact language of your divorce/separation agreement, a child can be considered unemancipated between the ages of 18 and 21 if that child is living with a parent and is principally dependent on that parent for support. After age 21, if the child is not enrolled in an undergraduate college program full time, the child will be considered emancipated. Between the age of 18 and 21, the support of a child includes paying the overhead/household expenses, such as food, utilities, mortgage/rent so that the child lives with the parent free of those expenses. If your daughter works full time and pays her parent rent or expenses to live at that residence, you have an argument that child support should terminate. As you can see, the "emancipation" issue is fact driven, so it is important that you obtain details of the situation and speak with an attorney to determine if your daughter is in fact emancipated under Massachusetts law.

 Parents are presumed to have legal custodial rights to their children, unless otherwise ordered by a court. If one parent dies or is incapacitated, the presumption is that all those rights pass to the other surviving, available parent. If the surviving parent assents in writing to another person in place of the deceased or incapacitated parent, then there is a legally binding arrangement- at least for the moment. The Courts of Massachusetts retain jurisdiction of children, and upon petition of a surviving/available parent, can independently decide if the arrangement should continue or change. You and your friend should consult with an estate planning attorney to make sure the wishes of the sick parent are adequately and legally expressed. Best wishes to you and your friend in this difficult time.

In either situation- direct payments to your ex-spouse or DOR involvement-- it is very important that you keep track of any amounts you make to your ex-spouse. You should not pay by cash without her giving you a receipt that includes her signature acknowledging the date and amount of cash you gave to her. Otherwise, if there is a conflict later on, or she "forgets" payments you made to her in any future contempt proceeding for non-payment/underpayment of child support, you (as the payer of child support) have the "burden of proof" to show payments; not vice versa. In other words, you must show the judge proof of your actual payments of child support. Checks, money orders bank wire transfers into her account can more easily prove that you made payments, then your word against hers that you simply gave her cash. Documentation of payment is your best defense should she file a contempt proceeding against you in the future for failure to make child support payments. It is also recommended that you keep a separate file and regularly add copies of your on-going proof of payments, so that these documents are readily accessible to you in the event you have to defend yourself in a contempt proceeding at any time in the future. Failure to pay child support has serious consequences and a contempt judgment could include payment of your wife's attorney fees, costs and possible jail time. These matters should not be dealt with too casually.

 The fact that your daughter is pregnant does not automatically mean she is emancipated. The fact that your daughter has not spoken to you or that you have no relationship with her does not impact whether you must continue to pay child support. Although when a child reaches the age of 18, she is now reached the age of majority and in many ways considered an adult, it does not mean she is emancipated under Massachusetts support law. If the court judgment regarding your obligation to pay child support does not state the definition for emancipation, then statutory law is presumed and you must obtain a court order from a judge to terminate child support. Clearly, if your daughter marries she is emancipated. However, if she continues to live with her mother and is principally dependent on her mother for support, then she may not be emancipated. This "state" can continue until she is age 21; regardless if she is in college or not. After age 21, she must be in a post-secondary educational program full time in order to continue her status as unemancipated. The absolute date for emancipation under the latter circumstance is graduation from the educational program or reaching the age of 23, whichever comes first. Of course, if at any time she is self-supporting; married or in the military service full-time, she would be considered emancipated and support would not be paid. You will have to determine whether she is principally living with her mother and principally dependent on her mother for support by using investigative techniques, such as communicating with mutual acquaintances or hiring a private investigator to determine her status. You should consult with an experienced family law attorney as soon as possible to review the court judgment and the specific facts of your case in order to determine the best course of action. Good Luck