Can I petition to change our visitation schedule?

Additional Info: My ex and I are in the process of divorce and have a custody agreement, and temporary orders set in place. He has our 1 year old son every Monday over night into Tuesday. However, he works Mondays and Tuesday, and pawns my son off on his family. He also has our son every other weekend. I am perfectly able to care for my son during those days that he is not available. I am looking to petition for visitation on alternating weekends only for him. Is that acceptable?

Answer: Certainly talk to your attorney. For a 1 year old particularly- not seeing a parent for almost 2 weeks is a very long time. It is really important for a young child to see the parent he is not living with as frequently as possible. That is why a weeknight is often included in a parenting plan- so that the child can spend time with the parent on the week that they would not be seeing them and for a shorter period of time. Perhaps an adjustment to this schedule may have a better result for both of you? A night that “dad” is not working- and more towards the middle of the week. or the evening and overnight with dad and the daytime with you if you are not working. Perhaps there is one weekday that dad can leave work early and stay late on another day to make up for it when the child is not with him. This overnight can also allow you to use the time for something that you need to do. It is so important to encourage the relationship that each parent has with their child. Your child will have immense benefits over his entite life by being able to build a solid relationship now with his father. These adjustments to the schedule will happen over many years of your son’s life. When your din enters school schedules may change. It is so helpful to look at them as opportunities to increase the bonds that your son has with both his mother and his father.

Parenting Together Through Divorce

By Tracy Fischer

Our children are an integral part of our lives and keeping them safe and feeling secure is what parenting is all about.  Parenting together after divorce presents new challenges to an already difficult process, but navigating painful emotions to maintain a united front is an essential part of the job.  The bottom line is, kids feel healthiest when their parents get along.

Breaking the News

Depending on age, discuss the process openly in your family.  If possible, include both parents in the discussion.  Emphasize that while the family is changing, it is not ending.  Divorce means that a marriage is over, it does not mean that a parent’s relationship to his or her child is over.  Your children should feel secure that both their parents love them and neither parent will leave their lives.  Make sure they understand that the divorce is not their fault, that there is nothing that they can or should do to change things.  If possible, tell your children what decisions have been made, where they will live and that they will still be spending time with both parents.  Remember to answer their questions with as much care and honesty as possible.  They will probably have quite a few questions, and answering them, repeatedly if necessary, will help them regain the sense of security that they’ve lost.

Dealing With Your Own Hurt

Painful feelings are a natural part of the divorce process.  When co-parenting, however, those emotions must take a back seat.  Remember to make the happiness and security of the children your shared priority.  When feelings of pain and anger arise, take them into a separate space.  Try to make sure those feelings don’t leak out into interactions with your children.  Find a therapist or a close friend to lean on instead.  Be aware of your body language as well.  Make a conscious effort to take deep breaths and relax your shoulders.  If you’re feeling momentarily tense, smile.  It’s remarkable how some emotions can work from the outside-in.  Divorce mediation or counseling can allow divorcing parents the opportunity to sort through and communicate some of those unpleasant feeling.  Sometimes, just the opportunity to express them and know that they have been heard an acknowledged by the other parent may be a start to letting them go. [Read more…]

I want a divorce but my husband refuses to leave.

Additional Info: I don’t have any family or friends that can let me and my 2 small children stay with them and not enough money to move out right away. Is there anything legally I can do to make him leave while we start the divorce process?

Answer: I would suggest that you consider divorce mediation as a way to not only resolve the issues surrounding divorce but to figure out logistically how to live physically in separate places. In mediation you can discuss what are the concerns that your husband has relative to moving out. Does he realize the divorce is inevitable? If so, he may be refusing to leave because of issues you may not even be aware of. He may think that if he leaves he can be accused of abandonment. Many many people are worried about this and afraid to leave the marital home. With legal information from a mediator he can learn that this would not be an issue, judges realize that someone does have to leave. He may not want to leave until a parenting plan is in place, assuring him of ample time with the children. He may also feel that if he leaves he gives up his right to the home if you own it. These concerns can be addressed in mediation and a preliminary agreement can be reached just to enable a separation to occur. You certainly should speak to a divorce and family law attorney in your area to go over what your rights may be in this situation.

What’s In A Name?

By Tracy Fischer

When a couple marries one of the big decisions made initially will be…. what last name the female spouse will use. There may be a difference of opinion that will need to be ironed out.  Will she keep her maiden name, will she take her new husband’s name or will the name be hyphenated? Many women see this change as an exciting rite of passage.  What impact will this name have on the children they hope to have.  This decision has a far- reaching impact that is often not considered at the time when the relationship is happy and the marriage is intended to last forever.

Some women look at their last name as a key part of their identity.  Others may have always disliked their original last name because of spelling complications or not like the sound of it and be very excited to take a new name.  Some may feel that the transition from their family of origin to a new family with their new partner will be solidified by having the same name.

If a couple then later decide to divorce, again the female spouse will have a decision to make.  Should she keep the name she is used to, may be using professionally and is the same as her children? Should she return her maiden name immediately, which may be a time consuming and paper-ridden process? [Read more…]

Will using a mediator put me at a financial disadvantage?

Additional information:  My husband and I separated last fall. I have always homeschooled my children (something we both agreed upon). I have a M.S. in Nutrition and up until this past January, I have put my career on hold to homeschool the kids. I think that I have a right to get 50% of our combined earned income as support. I have been home for 14 years nurturing, raising and educating our children. Before doing this, I was earning a good living in my mid-twenties ($55,000/yr). He wants to use a mediator. I am worried that these things won’t be considered and I will be at a financial disadvantage.

Answer: In divorce mediation the issues of one spouse putting their career on hold for the benefit of the children and family is certainly addressed and considered in perspective with all the other issues that need to be addressed. The capabilities of each spouse to earn through employment in the future would also be addressed. Using a lawyer and/or financial advisor during the mediation may be a very helpful approach for you. You would certainly not be in any way disadvantaged financially or otherwise in mediation especially because you seem to have an understanding of what you would like to see happen. [Read more…]

How can I use QDRO money without penalty?

Additional information: I’m 40, getting divorced & expect $50K from QDRO. I’m so in debt. How can I use QDRO money without penalty?

Answer: There is a little known exception to the requirement that an early distribution from a retirement plan causes one to pay a 10% penalty on the money withdrawn.  If this QDR is on a 401K Plan. 403B or KEOGH profit sharing or money purchase pension plan the IRS offers an exception to the early distribution 10% penalty. There is an option for the alternate payee (you) to withdraw the funds and only pay the tax and the penalty would be waived. When the QDRO is implemented, the 1099-R from the financial institution must be coded with a “2” – early distribution, exception applies. If it is not coded properly this incorrect election can be corrected after the fact. Please consult with a financial advisor or accountant before making this very important decision as the income received from this withdrawal may put you into a higher tax bracket and cause you to pay additional taxes. A financial professional will be able to advise your properly based on your entire financial situation and may have other more appropriate suggestions than early withdrawal from a retirement plan.

Supreme Court Decision’s Effect on Same-Sex Divorce

By Tracy Fischer

The new Supreme Court ruling striking down the Defense of Marriage Act, which defines marriage as a union between only a man and a woman, has surprising ramifications not only for marriage but also for divorce.  Until now, in Massachusetts a same-sex marriage that led to a divorce had several complicating factors.

Often same-sex couples choose mediation as a way to end their marriage in an amicable and cost effective manner,  just as opposite-sex couples have for many years.  While many of the same issues arise in a same-sex divorce, the opportunities to divide property and deal with tax issues are very different.  Here are just a few examples.

Currently, in a same-sex divorce, a pension that one spouse may have earned during the marriage could not be divided through a Qualified Domestic Relations Order.  This Order divides pensions and retirement accounts at the time of divorce without any tax payments or penalties and insures that the non-owning spouse, or alternate payee, would have their rightful share of the pension at the time of retirement.  Divorcing same-sex couples were forced to use other assets to effectuate an equitable division of the marital assets, many times in ways that were not in either parties’ financial interest. [Read more…]

Is The Time Right To Sell The Former Marital Home?

By Tracy Fischer – June 2013

Many divorce agreements drafted over the past few years provide for joint ownership of the marital home, with one party residing in the home usually with the children. Often when these arrangements are made, parents want to maintain stability for the children, trying to keep the same school system and friendships. One spouse may not be ready to make the decision about where to move. Situations have occurred over the past few years where it would not be financially feasible to sell the home because property values had decreased. The person who does not live in the home is usually not financially responsible to pay the costs of the home, but may be responsible for larger necessary maintenance and repair costs.

Often agreements provide for a specific length of time that the house will be owned jointly before there is a buy-out or sale. This length of time can be increased or decreased by agreement of the parties. The party who does not live in the home may be unable to purchase a new home because of equity that is tied up in the jointly held property or because of the mortgage which remains in joint names. [Read more…]

Will the courts grant my ex-wife alimony?

Additional information: My ex wife wants alimony but refuses to pay me child support. She is currently living with her new boyfriend and to date has refused to support her daughter but is insisting on me giving her alimony. Will the courts grant her alimony even when she is working full-time but refusing to work OT that she used to work when we had been together? She makes 35,000 and I make 83,000.

Answer: As you mention in your question that your wife is living with her new boyfriend – the alimony statute actually provides that if a spouse is maintaining a “common household” with another for a period of 3 months, alimony would be suspended, terminated or modified.  It would seem that requesting alimony while one is “living” with a significant other would be difficult under the law, however her situation may change.  You may want to consider mediation as a way to explore and discuss the very difficult issues you are clearly encountering.  How your family can address the financial issues in a way that will be fair and equitable for all and provide for your daughter is the basis of divorce mediation.  A neutral professional will assist you in making decisions on all the issues involved in a comprehensive divorce agreement.

Massachusetts’ New Alimony Law and How it Could Affect You

By Tracy Fischer

The Massachusetts Alimony Reform Act was signed into law in 2011 and became effective a little over a year ago. This law brought about sweeping new changes in the way alimony is awarded in the state, and many orders issued prior to its enactment could be modified as a result.

One of the biggest changes brought about by this act was the length of time a spouse may receive alimony. In the past, alimony was sometimes awarded for an indefinite period even when marriages lasted less than 20 years. The current law requires couples to have been legally married for at least 20 years before alimony will be awarded indefinitely. Cohabitation and the forming of an economic partnership prior to marriage can add on to the length of the marriage. Those who were married less than that amount of time may receive spousal support for a period of time ranging from 50% to 80% of the number of months married depending on the length of the union.

Alimony may be suspended under certain conditions including if the recipient later remarries. If he or she cohabitates with another for a period of time that exceeds three months, a judge may also order alimony be suspended. In most instances, payments will automatically cease when the spouse who is ordered to pay reaches full retirement age. [Read more…]