The Definitive Guide to Getting Divorced in Massachusetts

The Definitive Guide to Getting Divorced in Massachusetts

A Detailed Guide for On Divorce in Massachusetts

If you or a loved one is thinking of filing for divorce, The Definitive Guide to Getting Divorced in Massachusetts was created to help you through the issues you may face.

In Massachusetts, most married couples choose to file for divorce under grounds of irretrievable breakdown of marriage. These grounds are popular because few couples want to disclose the personal, unpleasant and often, distasteful, affairs of their marriage to the court. The courts must process a lot of cases and fault is not a huge aspect of getting a divorce in the state of Massachusetts. However, in some very rare cases, there might be a reason to file on a fault ground. One such situation would be the active involvement of children. Another frequently used fault ground is cruel and abusive treatment. This is usually when there have been incidents of extreme violence or abuse, or some other reason that would be considered cruel and abusive to the spouse.

Divorce Issues

Division of Assets and Debts

A marital estate in a divorce in Massachusetts that is subject to division by the court consists of all the assets and debts from the marriage. The marital estate is anything you have or anything you owe. These assets and debts may or may not get divided 50-50 depending on how the asset was treated. All of this is considered by the court when trying to reach a fair and equitable settlement.  If the Judge must rule, it is called a fair and equitable judgment.

Sometimes inheritances become an issue. Judges treat inheritances differently.  That being said, one of the factors Judges look at is whether or not the inheritance was actually received during the marriage.  Also, how they treated the inheritance during the marriage matters. For instance, consider you inherited $50,000 from your aunt a year after you were married. You used it to buy your first house. Consequently, you rolled that over into your second house. 20 years hence, you have little chance of getting that money back. However, had you received the inheritance from your aunt a year after you separated and just as you filed for divorce, you would have a better shot at getting that money back. This is why the treatment of inheritance is so dependent on the facts of the case. The court relies on 18 different factors when it comes to dividing a marital estate. The following are some of them:

  • the length of the marriage
  • the age of the parties
  • their health
  • their occupation
  • station in life
  • how the money got into the estate
  • preservation of the estate
  • spending habits of either spouse

Most divorce attorneys will go over all 18 factors with you when you meet with them.

Retirement Accounts and Marital Coverture

Retirement accounts are considered a marital asset in a divorce.  Whatever accrued during the time of the marriage can be divided. A common issue when dividing a pension and retirement accounts is when someone might have worked for an employer for a long time, and they want to keep their pension at all costs.  For instance, the person may want their spouse to have the house instead.  The pension would need to be valued so it compares to the house value.  The valuations are done by a specialist, they determine what the present value of that pension is. They do this by taking the number of payments expected to be made in the pension from the date the person starts collecting to the anticipated date of death.

Retirement accounts are considered in marital assets in a divorce and the general way of the treated is that whatever accrued during the marital coverture period is divided. What marital coverture means is how long the parties have been married. So, what would be divided is what accrued from the date of the marriage to the date of divorce. Therefore, the issue with retirement plans is in pensions. Sometimes people just divide the payment that they are ultimately going to receive. For instance, if you are going to receive a payment of $3,000 a month after you retire 15 years from now, that $3,000 a month is not divided 50:50.

Let’s use an example where the parties are married for 20 years. Then the pension is payable, provided the party continues working say for 10 years beyond the divorce date. How it would work in terms of payment is that one spouse would get two-thirds of one-half. So, in the case of the $3,000 payment, one spouse would get half of two-thirds of $3000, which is one half of $2000, which in turn is $1000.

The way pensions are divided is by means of a qualified domestic relations order. This is drafted and given to the court. The court then approves it. It is consequently given back to your plan administrator for the pension. This plan administrator then has the authority to divide the check between both parties. This still holds true if it is a non-pension payment account, like an IRA account or a 401K account. Those are rather like what-you-see-is-what-you-get accounts. Whatever your balance is, that is the amount that will be divided. If, however, there was an amount that was clearly something that could be carved out as having been prior to the marriage, that is an argument that your attorney could make. However, the court does not always carve out pre-marital IRA or 401K money.

The other problem with dividing pension in retirement accounts is that someone might have worked for an employer for a long time and they want to keep the pension they so painstakingly accrued. It is natural to feel this way, and it is a common issue. They might want to keep the pension and in its stead, give their spouse the house, for instance. This is common. In such a situation, we get the pension valued.

Let me give you a simplified idea of what that means. The evaluations are done by specialists in actuarial science, or an underwriter. What they essentially do is to determine what the present value of that pension is. They first consider the number of payments that are expected to be made from the date the person starts collecting the pension to the date they anticipate the person’s death. They then sign the anticipated date of death by means of actuarial tables. Let us assume for the sake of this example, given that person’s age at the time of divorce and given their life expectancy, that they are going to collect the pension for 20 years in 10 years’ time. What they do is they take 20 years of payments and reduce it to a present value. Let’s assume that the monthly payment is $3,000. The present value would be calculated by multiplying $3,000 a month by 20 years, and then that would be reduced to a present value. So this might effectively be two-thirds of the actual amount received. This is because they must backdate it since you are assigning a value to that pension now and trading that against another asset.

Let us assume you get a pension evaluation that determines that the pension is worth $250,000. Let us also assume that the equity on the house is $250,000. In some situations, one spouse decides to keep the pension, and the other keeps the house.

Another argument that individuals often have is that the juxtaposition of pension money with a house is tantamount to comparing two very dissimilar quantities. Perhaps there ought to be a discount for the pension money. Worry not, because that is taken into account by the actuary with the calculation of the present value.

However, that same argument is also made regarding IRAs and 401Ks. This is because withdrawals from an IRA or 401K are taxable events. This causes some individuals to argue that the 401K and IRA should not be treated the same as the house. But the other side of that argument is that money and house does not always translate to cash either. Although you may get an equity line of credit, cash and house is subject to cost when it’s distributed. These take the form of broker’s fees, other normal customer reselling costs, tax stamps and so on.

Inheritances

An inheritance in divorce is divided by the court. They have the right to divide it 50-50. They may also allocate it differently. In general, if an inheritance is traceable to the person that received it, then the court would not divide that 50-50, especially if the inheritance was received close to the date of divorce. It also depends on how the parties treated the inheritance during the marriage. If for example, if you received an inheritance and you decided with your spouse that you both wanted a new kitchen 10 years ago, then you have both enjoyed the kitchen. In such a situation, you are not going to be able to go back and take out that money back out. You may not also not retrieve it from the marital state because the it is ‘woven into the fabric of the marriage’. The technical terminology is in fact, “woven into the fabric of the marriage”. If the inheritance is ‘woven into the fabric of then marriage’, then it will probably be treated as a marital asset subject to a 50-50 division. It is a different matter altogether if it was segregated and treated as a separate asset by the parties. An instance would be an investment account under one person’s name only, that was set up as a joint account, and the non-inheriting spouse had been unaware of its existence, location or value. The odds are that it is much less likely to be considered in a 50-50 division. In fact, it might even be entirely excluded from the division of the marital estate.

Alimony

Massachusetts had a huge change in the alimony law in April 2012. Up until that point, alimony was generally lifetime alimony. The payer spouse would have to pay alimony until their death.  Sometimes in an agreement it would say that alimony would terminate upon retirement, but not always. Sometimes there was no end date. The new alimony law in Massachusetts sets time limits for how long alimony is payable. That is entirely dependent upon how long the parties have been married.

How Alimony is Calculated

There is a breakdown for 0-5 years, 5-10 years, 10-15 years and 15-20 years. What they take is the number of months you have been married and start with a percentage of 55%.  It goes up from there.  Basically, that is the number of months you have to pay alimony for.

After 20 years of marriage, it can be an indefinite term in the state of Massachusetts.  The caveat to all of this is that the judge looks at the ability of the payer party to in fact pay the alimony and the needs of the recipient party. If the recipient party does not have a need for it, alimony might not get paid.  However, in a case where somebody has been the breadwinner throughout the marriage and where the other has a lesser earning capacity, generally, the new alimony law would apply. If you have been married longer, you are required to pay a certain percentage based on the number of months you have been married. So, it varies with the length of the marriage.

The length of the marriage is computed from the date of the marriage to the date the divorce is served. For instance, we recently had a case in Mansfield where the couple were just on the cusp of reaching the 20-year mark.  We wanted to get them in the 15-20 year category, so we acted quickly to serve the divorce complaint.

The other thing to know with alimony is that everything in this area is general.  However, the way it is computed now is based on what is known as the ‘disparity of incomes’. For example, say the payer spouse makes $90,000 a year while the recipient spouse makes $10,000. The difference between their incomes is $80,000.  The alimony that is to be paid annually would be between 30%-35% of that disparity. Thus, the alimony paid to the recipient spouse would be 30%-35% of $80,000. These are the rules regarding alimony, and when alimony can be modified.

Whether people who had lifetime alimony agreements can modify their alimony depends on what they agreed to at the time of the divorce. In some agreements alimony is modifiable and in others it is not. If you have been paying a lifetime alimony agreement and want to modify it, will all depend if you have signed a surviving alimony clause. When you sign a surviving alimony clause, the clause is not modifiable.   You can’t modify them because both parties agreed that it would be non-modifiable. The right to modify will also depend on how long it’s been since your agreement was signed. The alimony law grandfathers these people in and does not give them the ability to come back to court if they have a merging alimony clause.

How Long Alimony is Paid for

The time length to pay alimony is dependent on how long the party has been married.  A party that has been married for 15 to 20 years will see the highest category for alimony. The state will add up the number of months that you have been married, and have you pay for 80% of that time.  This is how the state of Massachusetts determines their alimony time length.

Divorce and Children

When you have children and get divorced, you will have to stay in contact and remain civil with your ex-spouse.  This is because of the fact that your separation from your spouse does not change your responsibility to your children.

  • The current support formulation is broken down into 3 categories
  • You will pay 30% if you spend the least amount of time with your child.
  • The middle of the row payment is if the parent spends 30-50% of their time with the child
  • The 50/50 payment arrangement is the lowest payment category
  • Extracurricular activities and private schooling are decided on a case-by-case basis

Maintaining Life Insurance

In most cases, life insurance is maintained by both parties post-divorce. In regard to the payer spouse, we advise the payer spouse to maintain life insurance in an amount sufficient to cover child support payments from the date of divorce to the date the child will be emancipated. There are many other costs that go into what that spouse is responsible for during that time period, including uninsured medical bills, college tuition, cost expenses and so forth. If I calculate the child support out – depending on the age of the child and the anticipated date of emancipation – it could come to $250,000. Then I would recommend a $250,000 life insurance policy.

It is important to check because many lawyers do not check the term of the policy. You want to make sure that whatever policy they have is going to last until the emancipation of the children. That can also be an employer provided policy, but nobody can guarantee that they will be with that employer until the child is emancipated. It does not have to be just an employer provided policy that the payer spouse has to maintain; it has to be maintained regardless of whether the person is employed.

With regard to the recipient spouse, their services to the children also have a value.  If you have a stay-at-home spouse or stay-at-home parent, you have to think about what it would cost to replace that spouse’s services in the event of a death. You have to look at anticipated day care cost and other services that person provides, whether it is mowing the lawn, or cooking meals, and then figure out what the actual needs of the children will be. Evaluation of that aspect is little harder than evaluating the anticipated child support payments. In most cases, what we do is to look at what one spouse maintains, then the other spouse has to maintain.

Another factor in life insurance is whether they already have life insurance policies and how long the term is with those life insurance policies and the cost of those policies. If the parties felt that they needed life insurance during the marriage that view wouldn’t change by either parties or the court because if they needed it during the marriage, then they need it post-divorce as well.

Dependency Exemptions

Dependency exemptions for the children are allocated between the parties by the court, and it depends on the relative income of both parties. If there is a situation where one party would be “wasting” the exemption, that means it has no beneficial impact on the amount of taxes that they have to pay; then the other party will typically get the exemption. If both parties benefit from the exemption and there is, for instance, one child; the general rule of thumb is that child’s dependency exemption would get alternated. If there are more than one child or two children, then they would be split, as long as both parents have a need and a use for the dependency exemption. If there are three children, it might get to be two children, one year for one parent, one child for the other parent and then reverse the following year. In any case, an IRS Form, “form 8332” needs to be filled-out to release the dependency exemption to the other parent, and that generally gets filed with the tax return.

Uninsured Medical Expenses

Uninsured medical bills are a matter of discretion with the judge in terms of the allocation of the payment, although in the vast majority of cases, it’s split 50-50. If one parent is paying full child support according to the child support guidelines, then that was taken into consideration when the child support guidelines were written. However, if there were uninsured medicals bills, they are split between either parent.

One of the biggest problems though with uninsured medical bills is how one party informs the other party of the medical bill. Frequently, people do not want to have monthly contact with their former spouse over bills and asking for money. However, on the flip side, it really is not fair to present to one spouse a whole year’s worth of bills even if the agreement says 50-50.  Ideally, whoever incurred the bill on behalf of the child must present said bill to the other spouse within 30 days of receipt of the bill or payment of the bill.  The spouse who is paying the other half of the bill has to give the other party the funds within 30 days. What that does is prevent a build-up of bills that someone can use to ambush the other party. Also, it is a method for both parents to stay informed of what the child is undergoing medically, what appointments they are having and what the child’s medical needs are.

Child Support

Child support is calculated by using the formula contained in the Massachusetts child support guidelines. The child support guidelines take into consideration the gross income of each party. The gross income is the income that a party gets before taxes or any other deductions are taken out, the cost of day-care and who is paying for day-care, the cost of health insurance and dental and who is paying for health insurance and dental, the number of children involved and the amount of time the payer parent spends with the child.

Modifications to Child Support

Any time that child support is changed to be reinforceable, it must be done by a modification to the previous agreement, whether that be a separation agreement, or a divorce agreement, or a previous modification agreement. For child support to be binding and enforceable, it must be approved by the court. So, in cases where income goes up and down, it could get recomputed. If there was a huge variation, you could go back to court. Although the rule now is that you cannot go back to court for 3 years. So, that has to be something that is factored in, as to why the income is fluctuating. This is where a percentage of the bonus or commission might become payable, if somebody gets a surprise commission or bonus. But the guidelines are designed so that it provides a stable amount that the payer knows they have to pay and the recipient knows that they will receive. It generally does not vary from month-to-month, although you may put something like that into an agreement in order to be fair to both parties.

If Your Spouse Receives a Bonus

Bonuses are typically considered for child support purposes. It is how the court treats them that varies from case to case. Bonuses gross income, just like any other income a spouse receives under the child support guidelines. In fact, there’s a huge list of things that are considered income. It could be social security, it can be royalties and basically any income that a spouse receives. Regarding bonuses, a court looks at whether the bonuses are given regularly. So, for instance, if you have an annual bonus, it’s generally argued that it’s unfair to include the amount of that annual bonus into the payment all year long because the spouse who’s receiving the bonus does not have the annual bonus until they’re given it. So, in a case like that, the typical treatment would be that a percentage of that gross amount of the bonus would be given to the recipient spouse along with proof of what the bonus was and generally a pay stub. That percentage can vary from case to case.

This is an area that is within the judicial discretion of the judge, although my experience would be that that bonus amount could be anywhere from 15%-28% of the gross amount. Although if I had to narrow it down, I would say it would be more like 25% could be the norm but that certainly not a hard and fast rule. That is not a law. In some cases, the bonus is treated as though it is paid regularly for the most part. Say that a sales person gets a commission that is pretty set on a monthly basis. That commission would be figured into the child support guidelines because it would be something that both spouses could count on. If, however, a commission sales person’s commission goes up and down, then that is something that is arguably just paid when it is received. Overall, the general treatment of bonuses is that a percentage is paid to the recipient spouse when and if received.

Payment for Extracurricular Activities

The payment for extracurricular activities is generally agreed upon by both the parties. Both parents really do have the best interest for their children at heart and they know what’s important to the child. If it’s a sport or activity that the child really enjoys, they can generally work that out. This is put into the agreement: that the extracurricular activity will be shared by both the parties. An additional provision may be included in the agreement suggesting that the extracurricular activity has to be agreed upon by the parents in writing prior to either party committing to the expense.

If the matter is contested, meaning one parent wants the other party to pay the extracurricular activity and the other party does not want to pay the extracurricular activity, then they go to the judge.  The judge will look at the relative incomes of both parties, at how long the child has been participating in that activity, how important it is to the child to continue to participate in that activity and what the reasons are for the objecting party to stop paying for the extracurricular activity.

Child Custody

Child Custody in Massachusetts is evolving from the words of “legal custody”, “physical custody” and “visitation” to the term “parenting plan”.

If the parents are unable to jointly agree upon where the child will primarily reside after the divorce, the court must make the decision. The court makes the decision as to whether one or the other parent will have primary custody based upon the best interests of the child.  Some of the many factors a court will consider are: the stability of each household, whether one parent abuses drugs or alcohol, who primarily parented the child prior to the divorce, who attended doctor’s appointments and parent-teacher conferences, the ability of each parent to address the needs of the child and the living arrangement and lifestyles of each parent and how such circumstances may affect the child and the child’s educational, physical and psychological needs. In some cases, the court will appoint a guardian ad litem to investigate and report back to the court.

Establishing Paternity

A paternity case is when the parents of a child have not been married. The father needs to file a complaint with the court to establish paternity. If both of their names are on the birth certificate, they will sign an acknowledgement of paternity which is a legal adjudication.

The court will not treat the father who’s married to a mother any differently than a father who was not married to the mother. The father has the same rights of parenting that child.  A complaint to establish paternity forms the rights that that father has to the parenting plan and to establish his child support payments, and anything else to do with the child.

Writing Your Own Visitation Order

In Massachusetts, any parenting schedule must be approved by the court to be binding. We ask each party what they want the parenting schedule to be. When people come to mediation, they sometimes have agreed on a parenting schedule and have already put it into place and know that it’s working for them.  Or, they might have agreed to the regular schedule but they’re having a hard time dealing with the holidays and vacations. In this case, we would just focus on those issues. Sometimes they’re still living together and haven’t even thought about a parenting schedule. One thing to keep in mind is that both parents are entitled to have a parenting schedule with their children, and you need to keep in mind the other person’s work schedule.

Divorce Options

Contested

When you have a contested divorce, you will be required to file a complaint for divorce, instead of a petition. This is because you and your spouse cannot agree on the issues at the onset of the proceedings.  Most divorces will start this way, but a divorce agreement is soon figured out.

A contested divorce is simply one where there is no signed written agreement when the divorce is filed. Generally, fault grounds are not used even in what’s called a contested divorce. The reason a complaint for divorce gets filed instead of a joint petition for divorce is you don’t have an agreement at the time you start the divorce proceeding but the majority of divorces do end up with an agreement. Even though a divorce might start off as contested, it often ends with an agreement.

Uncontested

To obtain an uncontested divorce, you and your spouse must complete a joint divorce petition.  You will also need to complete a separation agreement, a financial statement for each part which includes pay stubs and tax returns, an affidavit to show that your marriage is irretrievably broken down, and a few more small things.  You and your spouse must be in full agreement to all the divorce issues.

Most divorce clients want to start out the procedure as uncontested, but some issues become conflicted and that will lead to a contested divorce. The hardest thing with filing a joint petition for divorce is coming up with the terms of the agreement. Some people come into the office in Mansfield and they think that they have an agreement and that they have talked about all the terms necessary for the agreement.  However, sometimes they have not covered everything.  Other times, they think their spouse will agree on the terms and then they do not. A divorce becomes uncontested once there is a signed separation agreement.

Mediated

In the United States, researchers estimate that 40%–50% of all first marriages will end in divorce. Your divorce does not have to be financially or emotionally destructive.

In Massachusetts, the role of the mediator is to help both parties come to an agreement on all the issues involved in a divorce, and to craft a divorce agreement that will be filed with the court and accepted by the court. The mediator’s goal is to resolve any issues between the husband and wife in a less formal setting where both parties feel as though they’ve been heard on their issues and are able to come to a result that’s satisfactory to both of them.

There are many benefits to mediation including:

  • Faster process than a contested and/or litigated divorce.
  • More individualized agreements can be developed.
  • Reduced impact on the parties and/or children involved.
  • More cost-effective than traditional divorce proceedings.

What a Mediator Does

Deciding If Mediation is the Best Option

When people start to initiate the divorce process, they have a plethora of questions over what type of process they want to engage in. The important thing to know in regard to mediation is that it is less formal, you are more in control of crafting a solution for your disputes, and it is generally less costly than obtaining your own lawyer. Thus, a mediated divorce is beneficial for both parties. However, if you are the party that hasn’t had access to your information then you might want to educate yourself a little bit before engaging in the mediation process. Or perhaps, if you always feel overwhelmed or controlled by your spouse in some way, then you might want to obtain your own lawyer because sometimes in those situations you might not feel that any agreement that you reach would be even-handed. However, it is the job of mediation, the mediator, to make sure that that is not occurring. It is a comfort level that the party has to reach in coming to an agreement.

When you retain the services of a lawyer, you are represented in court. With a mediator, you are not represented. The mediator cannot give legal advice in any type, way, shape or form because it would be considered unethical. That is the problem with mediation because one lawyer cannot give legal advice to two people concerning the same dispute. So the mediator has to be very careful to not give legal advice. In fact, we encourage people going through a mediation to obtain a lawyer for legal advice. But sometimes, there are reasons that a case is inappropriate for mediation and they should obtain a lawyer at the onset.

For instance, there could be a dispute over inherited assets and no matter how much mediation a mediator does, there might not be an agreement on that point. In these cases where you need a tie breaker, you need to see a judge and generally you would do that, even though you may represent yourself before a judge. Generally, people get court intervention during the decision process as part of their representation when they have a lawyer.

How a Mediated Divorce Can Help Arguing Spouses

Mediation can work for divorcing people no matter what stage they are in their relationship with each other. Oftentimes, at the beginning of a divorce process, people are upset, angry, betrayed and are bringing the history of their marriage into a mediation setting. I generally redirect them to what the issue at hand is. The issue at hand is to resolve all their financial and parenting disputes in order to come up with an agreement that works for both parties. Occasionally in mediation, one spouse appears to be extremely angry with the other. The mediator might just take a timeout for a few minutes, and talk to that spouse individually to see what the concern is. Generally, they can move beyond whatever the anger or hostility is between the spouses.

Collaborative

The two parties and two attorneys will come forward with an agreement they cannot litigate the case; they want to arrive at an amicable agreement. The parties have to sign a contact, stating that they will not go to litigation. If the Collaborative Law Process breaks down, the parties have to obtain new lawyers, which can discourage the process.

The term “collaborative” means exactly what it says. Investigators, bankers, attorneys, mental health professionals, and other parties have to collaborate to resolve all issues. A tax analysis may have to be done to come up with an allocation to determine what should be alimony, and what should be child support.

A collaborative divorce is generally more expensive than a regular divorce because you have two lawyers meeting together a lot, there is no judge to determine any rulings, and you are hiring professionals to come in an collaborate.

FAQs

Does my spouse have to leave our home if I file for separation?

Let’s assume that you own the house, that the deed and mortgage are both in your name, that you make more money than does your spouse and that the two of you do not have children. In Massachusetts, parties do not need to be separated or living apart to file for divorce.  Also, title to property – here, the deed to your house – does not control its disposition in a divorce.  The Court has authority to transfer none, some or all of a party’s assets to the other to reach an equitable division of the assets and liabilities.

What do I do if my spouse refuses to move out of our marital house?

Absent grounds to have them vacate the house or obtain a restraining order, the issue of who lives in the house is up to the court.  If you have adult children who do not live with you, it is likely that the house will be sold.  If you have children living at the house with you, that may pose a problem. Otherwise, the court will likely order it sold unless your spouse is able to buy you out of the house and refinance the existing mortgage.

My soon to be ex has filed for divorce and changed the petition from irreconcilable differences to adultery. Does the person I had an affair with need to be named and therefore served with papers? Should they get an attorney?

The grounds of adultery are rare and can only be filed with special permission of the court. Such permission is usually not freely or easily granted.  The person with whom you had the affair does have to be named and served.  Generally, I advise anyone undergoing a legal proceeding like this to obtain counsel.

I have been separated from my husband since 1998 and we have a 22 year old son together.  How can I obtain a no fault divorce without alimony?

If you and he have agreed on all issues, you would need to have a separation agreement drafted or draft yourself and submitted to the court with other required documents, including, a Joint Petition for Divorce, a financial statement from each party, a certified copy of marriage certificate and affidavit from each of you that your marriage is irretrievably broken down.

I pay my ex-wife $2440 a month. That was calculated 8 years ago. She has never filed for a modification. I do make a little more money per year now, but not as much as she thinks. Perhaps $15,000 more a year. I also heard the laws changed since 2008 and the amounts went down slightly. My question is, if my ex-wife asks me how much money I make now, am I supposed to tell her? Or can I ignore it until she files for a modification of support?

You only need to tell her if a court order required it or if your divorce agreement states so. Otherwise, you can wait until she files for her modification.

What are the tax deductions for alimony and child support?

Alimony is always deductible by the payer spouse in Massachusetts.  You cannot label child support as alimony without potentially running into tax problems.  Also, the point at which the alimony ends cannot be based on a child-related event, such as reaching a certain age, or going to college.

I was court ordered to pay child support until June 2016 or until emancipations. My son has graduated high school and has a job.  Do I need a lawyer to stop child support payments. I’ve had to pay $35 a week for 3 years for back support, which I understand. But do I still have to pay the other $65 out of pocket for my son who is 19 with a job and not in school?

It really depends on whether your son is principally dependent on his mother, the custodial parent. If the job he has is not full-time and he lives at home with his mother, he may be considered un-emancipated until the age of 21. If the $65 portion of your child support order is going through D.O.R., then you would need to file a motion to terminate the wage assignment.

I am custodial parent of 2 teenagers, ages 15 and 17. My ex-husband who has joint custody lives outside of the country and typically comes to the US a few times a year on business, and once in the summer to visit the kids. Recently, since my eldest child has gotten his driver’s license and a car, my ex has contacted him separately without my knowledge and tried to schedule visitation on an upcoming trip to the US. Can he do this? Does he need to go through me to schedule until each child is 18?

Technically, they are minors and he has to go through you to arrange any kind of parenting time other than what is specifically set forth in your agreement. I’m assuming your agreement provides that he can have summer vacation time and there may be a provision that he has to notify you by a certain date in order to schedule it. For example, sometimes it says that the noncustodial parent must notify the other parent by X date, say May 1, in order to schedule the summer vacation time.

In our parenting agreement, my ex and I both agreed that we each would have 2 non-consecutive weeks with our child for vacation time. My ex-spouse emailed me in July (our agreement says we are supposed to have our vacation plans in by June 1) to say he would be taking our daughter on vacation for a week to PA to visit his parents. Nowhere did he mention that he was planning on meeting his parents halfway and leaving her with them. I was under the impression that he was going to spend the whole week with her, which he is not. Can I tell him I will not allow this because he isn’t even spending the vacation with her?? He mislead me to believe he was taking the vacation with her. She only sees his parents maybe once a year and I know she will be extremely upset.

Vacation time is meant to be with the parent, not the grandparents.  You should confirm that he is not intending to vacation with her and then tell him, preferably by email so you will have proof (unless the agreement provides otherwise) that his notice is invalid because he is not intending to take a vacation with your daughter.

I have two children with my ex and I am thinking of signing away my rights to my ex. Right now we have a standing order for shared custody but I am not able to provide for my children since I am not able to obtain employment in this country. I am on the deportation list. Would I still have to pay the back support for my children?  They are 7 and 8 years old.

If the support accrued before you terminated your parental rights, you would still be liable for the child support. I have advised clients that it is possible that your former spouse could waive the right to collect the arrears.

I am female, a 40-year resident of MA, and live in Newton where I own a home. I am a college professor at a nearby university. I have been living in Pasadena CA since Feb 1 as part of sabbatical at my college professor job. My husband and two children are here also (and my husband’s mother who lives with us). I want to get divorced since living together is becoming intolerable. I don’t want to file in California since I prefer equitable division of assets (MA) rather than community property (CA). I hope equitable division will allow me to keep the house since my husband contributed no money to its purchase and has been voluntarily unemployed after quitting his job one year into our 10 year marriage.  My husband opposes the divorce and refuses to discuss any issues about it. He may refuse to return to MA.

In order for the Massachusetts court to have jurisdiction, you had to have last lived here as husband and wife. However, the interpretation of whether that is Massachusetts or California is dependent on the facts. For instance, it depends on whether you and he changed your driver’s licenses and voting registration.  If your stay in California is temporary in nature, you may still have jurisdiction to file in Massachusetts.

My husband wants to share the cost of a lawyer. I’ve been told it’s just as easy and quick to file w/o a lawyer. Not sure what to do.  We have no joint assets or children.

You may represent yourselves. However, if you do not understand your agreement or later do not like its consequences, you may wish you at least sought out some legal advice.  Depending on how your agreement is written, many items such as property division and support issues may be final and not later subject to change by the Court.  If you have a change in your income or financial circumstances, you may find yourself unable to seek relief.

Also, although it may seem like a good idea to “share the cost of a lawyer,” an attorney cannot represent both you and your husband.  So, if you husband is proposing that he will hire a lawyer that you will pay for out of your joint funds, you must be aware that that attorney only represents your husband and not you and will not be giving you advice about whether any agreement you enter is in your best interests or not.

At minimum, if you represent yourself and come to an agreement with your husband, I recommend that you at least speak with an attorney who only represents you about your agreement to make sure that you understand its terms.

I filed an uncontested divorce. It is amicable so all documents from both sides were filed together. Do I need to wait to be assigned a judge first, then contact the judge’s assistant?  Is there some general calendar that I need to sign up for? Through researching I found that you must allow 5 days prior to the final hearing, but I could not find out where to go or who to contact?

When you file an uncontested divorce, it includes several documents, including the Joint Petition for Divorce, Separation Agreement, Affidavits of Irretrievable Breakdown of the Marriage, the parties’ financial statements and parenting certificates. It should also include a “Request for Hearing.” Even if it did not, however, once the Joint Petition and documents have been filed and docketed by the court clerk, your case would be assigned to a judge and an uncontested hearing scheduled based on that judge’s calendar. You should receive a “Notice of Trial” or notice of “Uncontested Hearing” from the Court indicating that date, time, and court where your uncontested hearing will be held.  If you do not receive anything in a reasonable amount of time (a few weeks as some court clerk’s offices have a backlog), then you may call the clerk’s office, find out the name of the judge in your case and contact that judge’s assistant to find out if it has been scheduled or a date on which it may be heard.

What should I bring with me when meeting with my divorce attorney?

Primarily, you should bring pay stubs to calculate any child support. You should also bring any background information, including your date of marriage, where you were married, and anything else that you may be concerned with. The initial consultation should help relieve any stresses of moving forward with a divorce.

What happens at a divorce hearing?

Most decisions made at the time of a divorce hearing. Your lawyer will likely ask you for your date of marriage, name, address, number of children, date of separation, and reasons for separation. Both spouses should take advantage of this situation to fully understand the terms of the separation agreement.

What is court order mediation and private mediation?

In Massachusetts, there are a couple of different types of court-ordered mediation, if you will. One is that occurs in the courthouse after you’ve attended court or you’re going to the court to litigate a disputed issue. Sometimes, before you see him, the judge will send you to family service. Family service is in the same building as the courthouse usually, and it is a court official who has worked in the court for a long time. He generally knows all the issues that people confront when they are undergoing a divorce. And you sort of get the court’s view on how it would probably decide to resolve that issue. That is one use of court-ordered mediation and the judge will send people to family service if they feel like there are only a couple of issues that are separating them or that they could benefit from the court family service office.

The other is more of a conciliatory program. It is becoming very common in Massachusetts. Some of the counties have now adopted a conciliation program. Basically, if you start a contested divorce and then you are in court say for a motion for temporary orders or a discovery dispute or a content issue over disobeying a court order, the court might send you to what is known as conciliation. Conciliation is done by a volunteer lawyer. These are lawyers that volunteer for the court on an approved list. The list is maintained by the court to meet with parties and their lawyers if they have any, and to hear both sides and then to come up with a recommendation to the court.

The recommendation that the conciliator makes is not binding in court. The court still has the ultimate authority to make a decision. But oftentimes it helps the parties to have a lawyer who is not their lawyer giving an opinion on how an issue should be resolved.

If you or a loved one is facing a divorce, let Attorney Cynthia Hanley walk you through the divorce journey.