How is income divided at divorce?

Additional info: For MA, I’ve heard 30% of the difference in income is typically paid from the higher income spouse to other spouse as alimony until retirement. Does this include only primary job, or also occasional consulting, book royalties, etc? What if income spikes or falls in some years? What if someone quits or gets…

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What Color Is This Dress And Questions Of Perception In Divorce Mediation

By Tracy Fischer

This dress is creating an internet frenzy. It has even had an appearance on the network news – is it blue and black or white and gold? It turns out people interpret color in different ways, though the dress is actually blue and black. Each individual’s brain assigns more or less weight to a color, when other colors are weighed against each other it results in a totally different color perception.

When one looks at a picture and sees a specific color, it seems so obvious that there is one clear right answer and one clear wrong answer. In this conflict between what is right and what is wrong, the answer seems to be perception. The color of the dress is a direct example of how we, as unique individuals, see situations differently and may not be necessarily right or wrong.

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New Mortgage Rules: The Effects on Separation and Divorce

By Tracy Fischer

Recent Fannie Mae mortgage guidelines changes are causing delays and difficulties among couples who are going through separation and divorce. It is crucial to be prepared and to know what to expect. In the past, husbands or wives could fairly easily begin the process to move on by preparing to purchase a new home. Sometimes, this included either selling the marital home and each purchasing new homes, or one person retaining the marital home by refinancing. Completed and finalized divorce agreements were not always necessary.

Often, couples may have lived together in the home and planned on separating and divorcing while waiting for more optimal market conditions or better springtime weather before putting the marital home on the market and each going the separate ways into new homes. Sometimes, couples want to wait until they were sure of their final plans before telling their children.

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Alternatives to Massachusetts Family Court

By Tracy Fischer

Family law disputes such as divorce, child custody, visitation, and spousal support discussions are often emotional and can be stressful. When two parties cannot agree, they may believe taking their case to court is the only option. However, litigation is expensive, emotionally draining and can be a very lengthy process. Additionally, the courtroom environment empowers the judge to make decisions instead of allowing the two parties involved to decide what is best.

There are viable alternatives to litigation and these options often allow the parties involved to determine what works best. Consider these effective alternatives.

1. Use a Mediator. Mediation is a productive way for each party to discuss, generate options and decide for themselves the issues that are important to them, including child custody, financial support and property division. A professional mediator is a neutral facilitator trained in the process of helping couples find common ground. Through a series of meetings, the mediator will draft a document outlining the agreement on all aspects that are required in a comprehensive divorce agreement. That document will then be submitted to the court for approval. It is not a legally binding document until approved by a judge. Since a mediator gives legal information only, it is recommended that both parties consult an attorney to discuss their individual rights and the consequences of certain decisions within the agreement drafted by the mediator. Look for a Certified Mediator at MCFM.org.

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How to Choose a Divorce Mediator in Massachusetts

When looking for and choosing a divorce mediator you should consider a variety of factors.  The most important is experience and training of the mediator.  The Massachusetts Council of Family Mediators has a rigorous certification process for divorce and family mediators.  As the current chairperson of the Certification Committee for MCFM, and a Certified Mediator…

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Alimony and Remarriage in Massachusetts

Divorce is a challenging time for both spouses. So many factors involving the outcome can have lasting effects. Alimony is no exception. Alimony refers to a specified amount of money paid to one spouse by the other spouse during and after divorce. The purpose is to help the lower-earning spouse maintain a reasonable standard of living. One of the most popular questions asked is, “can remarriage discontinue alimony?” A change in the Massachusetts alimony law in 2012 clarified that provision and several others. Consider these four frequently asked questions about alimony and remarriage in Massachusetts.

How Much is Alimony?
The main consideration in calculating alimony in Massachusetts is each spouse’s income or income earning ability. However, many other factors are at play when a court determines how much alimony a spouse is required to pay. While the actual amount is usually a percentage of the difference between each  spouse’s income, the following factors are also considered:

  • How long the two were married;
  • The standard of living while married and the ability of both spouses to maintain that standard of living;
  • The income, skills and employment opportunities of both spouses;
  • The current liabilities and needs of each spouse;
  • The age and health of each spouse.

What if the receiving spouse gets remarried?
Massachusetts changed the alimony law in 2012 to include a provision that terminates alimony if the receiving spouse remarries. However, don’t assume termination upon remarriage is automatic and an agreement or  Complaint for Modification would need to be approved by the court.

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Massachusetts Financial Statement in Divorce Mediation

By Tracy Fischer

When you are in the process of getting a divorce, you may feel overwhelmed by all of the decisions you have to make. If you and your spouse are able to be amicable towards each other, then mediation is a viable and effective alternative to litigation especially when it comes to settling your finances. An experienced Massachusetts divorce mediator can help.

There are specific rules regarding financial disclosure in Massachusetts divorce. Both parties are required to provide a full and complete Probate Court Financial Statement.  This Financial Statement is used in mediation as a tool to help the parties understand their income, assets and expenses.  The ability to understand your current financial situation allows you to better predict a future financial picture and make informed financial decisions.

If you earn less than $75,000 each year, you can fill out the “short-form.” If you earn more than $75,000, you are required to fill out the “long-form”. Both forms require specific and detailed financial information.  For the purpose of mediation, the Mandatory Self Disclosure rules require back up documentation, such as recent bank and retirement account statements, credit card statements, life insurance policies, loan documents and tax returns.  The reality is that you may end up having to complete this form more than once depending upon how long it takes for your divorce to be finalized.  The final Financial Statement must be current at the time you appear in court for the divorce hearing.

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Spousal Support Modification – Is it right for you?

There are many existing divorce agreements that have orders of spousal support or alimony. Recently, many states, including Massachusetts, have instituted new guidelines to determine who will receive alimony and for how long. The alimony that was set in an agreement or judgment years ago may no longer make financial sense.   There may be specific reasons why you may need to modify the results.

Remarriage

According to the recent Massachusetts alimony statute, if the spouse who is receiving the support marries or moves in with someone else and “maintains a common household” for at least three months before the alimony period ends, the support would be suspended or terminated. However, it is often up to the payor to take an action, either through mediation or the court, to modify the support officially.  Ultimately there would need to be a court order that changes the alimony amount or length of time.

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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…

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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.

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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…

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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?

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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.

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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…

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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.

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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.

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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…

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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.

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Is mediation the right course for my divorce?

Additional information: My Husband and I lived together for 8 years before marrying in Aug 2010. We have no children and the majority of our assets (including our condo) are in his name only due to my poor credit. Now that he has asked for a divorce I have found reason to believe he is…

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Co-Parenting Successfully through Divorce – Establish a Parenting Plan

By Tracy Fischer

The decision has been made and action has been taken. Whether your divorce was mutually agreed upon or contested, what should be agreed upon is the direction for raising your children. Whether you are the mother or father, you need to make sure that you are parenting together.

Your children have the right and need to freely love both parents. You may have bitter feelings or feelings of indifference towards your ex-spouse, but don’t let those feelings ruin your child’s relationship with you or their other parent. Those feelings may have a greater negative impact on your relationship with your child than you may have expected.

Putting together a parenting plan will help each party see that the needs of the children are the utmost priority. If the parents cannot agree, attorneys and the courts will have to intervene to resolve visitation, support and custody.

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My husband controls all the money. How can I afford a divorce lawyer?

Additional Information: We have been married for 32 years. I stayed home to raise our two children. When they were older I starting working until I got laid off fairly recently. Last year I developed many health issues that caused me to not be able to work. I work part time now despite health issues. My husband controls all the money and gives me less and less to pay the bills. I do not make a lot of money. Who moves out since I can’t afford a hotel or apartment? Do I have to work full time despite health concerns or would I be entitled to alimony?

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May 1, 2013 – A four part series: When Your Kids Push Your Buttons

  With Danya Handelsman, Pediatric Physical Therapist and Parent Coach Download Event Flyer End the action-reaction cycle between you and your child Learn to recognize what pushes your buttons Defuse difficult, emotionally charged interactions Change your reaction when your kids challenge you Regain your parental authority Positively reconnect with your children Become the parent you…

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Getting divorced on irreconcilable differences

Additional Information: I have friends who are married, both with learning disabilities. They want to get divorced based on irreconcilable differences. They don’t have children, only a house with a mortgage – how does that work? Answer This couple may benefit from divorce mediation which would allow them to meet with a neutral professional trained…

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If I worked part time am I entitled to alimony?

Additional Information:

My husband and I both worked full-time early in our marriage–both professionals with careers. Once our child was born he refused to help with transport of our child to/from daycare (citing he could no longer take the express train) so I was left on my own. After 9 months of handling 90% of the child transport + domestic chores + working full-time, utterly exhausted, I elected to work part-time with NO possibility of advancement until I returned to full-time status. My husband’s career/schedule was unaffected. I am filing for divorce soon. If I worked part-time for 12 years, am I entitled to alimony? How much am I entitled to? Is there a formula?  He presently earns twice as much as I do. We have been married 15 years.

ANSWER:

Depending on a many other factors, including where the child resides, child support and general living expenses, the circumstances you describe could very likely warrant alimony. The alimony statute outlines various factors that can help determine the amount of alimony, but factors such as child support are involved.

You may want to consider divorce mediation as a way of working with a neutral, trained professional experience in conflict resolution techniques. The option to mediate allows divorcing couples to communicate directly about the issues that need to be addressed such as parenting and financial issues. The issue of alimony would be addressed in the context of all your financial issues, income, assets, debts and expenses.

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We are getting divorced and selling our Watertown home.

Additional Information:

My husband and I have decided to get divorced and to sell our Watertown home. Recently he became angry and threatening so I moved to my brothers. My husband is living in the house and will not leave. I will be paying the mortgage alone and want to know if there is any way I can get him out. He found a rental property but refuses to leave the house. I cannot go to my home as I am scared of him. Do I have any rights?

ANSWER:

From your question, it sounds like you and your husband have made certain agreements to deal with the financial aspects of your divorce.  It seems as though something happened, or emotions have become more difficult, and now he is not willing to go along with the plans you had made.  You may want to consider divorce mediation as a way for you and your husband to meet in a safe and supportive environment with a neutral mediator.  The mediator is a trained professional skilled in reducing conflict and helping couples come to lasting and equitable agreements about their property and families.  From your question, it sounds like you are afraid to be alone with him.  You would have to determine whether you are comfortable meeting with him with a neutral third party.  

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How do I tell my wife I want to divorce?

Additional Information:

I want to do the right thing for my children and wife. She will be totally caught off guard by my request. What should I do to prepare for the day I tell her this?

ANSWER:

I don’t know if you have been in therapy at all, but telling your wife how you feel in a therapeutic setting with the proper support for her may be one way to deal with the range of emotions that she will have. You may suggest marital counseling.  After discussing your relationship you may want to consider divorce mediation as a way to work through the issues that need to be addressed such as a parenting plan, financial support and how to divide your assets.   Mediation is a non-adversarial and  collaborative approach that helps divorcing couples work through the difficult decisions while maintaining a high degree of cooperation.  The mediator is a trained neutral experienced in conflict resolution.  Mediated agreements are often less costly than adversarial divorces and help couples to maintain their relationship as parents.  It is so important that you do what you can to prevent the conflict from escalating while figuring out the decisions inherent in a divorce.  Most parents want to protect their children from the ramifications of divorce, and the best way to do that is to decrease the conflict between the parents.  Adversarial divorces will often increase the conflict between the divorcing parents.  Clarifying to your wife that you want the outcome to be a fair and equitable on for her and the children will help to set the tone. 

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Does child support continue if daughter is pregnant and not in school?

Additional  Information:

Do I have to pay child support in Massachusetts if my 19 year old daughter is pregnant and working and not a full time student? I have a current order to pay weekly support.

ANSWER:

You may want to consider, in addition to getting legal advice from an attorney, the option of post divorce mediation. You and your ex-spouse may be able to come to an agreement, with the help of a neutral and experienced mediator, as to how and when to modify or terminate the support arrangements. Your daughter, and her future plans, may have an impact on some of the decisions that you and your ex-spouse are going to make. The opportunity to have communication with your ex-spouse and for both of you to understand the full extent of her plans relative to how she will care for her child and continue to work. Is the father of her child involved in her life and will he be a support to her and the child? All of these are questions that you and your ex-spouse must be concerned about. Mediation would give the two of you the opportunity to discuss them in a comfortable and neutral setting and hopefully make future plans and agreements that will be beneficial to all of you. 

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Alimony and child support reduced during unemployment?

Additional Information:

I recently got laid off and struggling to make ends meet while keeping my ex-wife and kids on health insurance through COBRA, child support and alimony, and my own expenses.  How does MA courts view these circumstances?  Can the court ordered support be modified while I am temporarily unemployed?

ANSWER:

What happens to your obligations during a time of unemployment really depends on what your divorce agreement says.  Child support is always modifiable and certainly would be temporarily reduced during a period of unemployment.  The opportunity to mediate this issue would certainly make a lot of sense by providing you and your ex-spouse with some certainty and a much more speedy resolution.   Health insurance and alimony could possibly be addressed, but the language in the agreement would control.  Depending on what had been  specified in the agreement, alimony can either be modifiable or permanent.  Mediation would provide the forum for a calm and reasoned approach to dealing with these changed circumstances. 

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MA Laws regarding grandparent visitation?

Additional Information:

We are getting divorced after an 8 year marriage. We have 3 young children and haven’t figured out the children’s schedule and both sets of grandparents want to see the kids too. I’ve heard some states have laws in regards to grandparents rights.  What are the laws, if any, in MA regarding grandparent visitation?

ANSWER:

Grandparents can petition a probate court asking for visitation of their grandchildren where the parents are divorced or married but living separately.  The grandparents must show that visitation with them is in the best interest of the child.  Practically,  scheduling time so that grandparents can spend time with their grandchildren is something that usually can be done by agreement.  Commonly, grandparents see the grandchildren during the time that their child has the children.  This is an issue that can be part of a mediated  divorce agreement,  the time that the children would be with grandparents clarified so that both parents feel comfortable with the plans. 

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Getting divorced. I am getting divorced. Am I obligated to keep my ex on my health insurance?

Additional Information:

I am providing health care for my children aswell. She works and has for a few years. Her job offers health insurance. What if one of us were to remarry?

ANSWER:

Usually couples want to make every effort to minimize additional costs at the time of separation and divorce. Adding an additional individual medical insurance policy would be significant additional cost. Additionally all insurance paid to insure the family is used as a deduction to income in calculation of the child support guidelines. So adding health insurance costs could actually increase a child support payment. A good divorce agreement would deal with all the expected and unexpected circumstances that may arise such as remarriage, new job, loss of a job or change in health insurance benefits. You may want to consider divorce mediation which would allow you and your spouse to amicably arrive at a divorce agreement in a neutral setting while getting all the legal information that you need to make informed decisions. 

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Can I get a divorce and move out of state (MA) if I’m pregnant?

Additional Information:

My husband and I are getting divorced.  We currently live in Massachusetts but I am from Illinois and would move back to live near my family, especially for support when the baby is born.

ANSWER:

You may want to consider divorce mediation as a way to communicate and discuss with your husband all the issues that need to be decided in coming to a comprehensive divorce agreement. Obviously one of the issues will be the eventual birth of the child and where that child resides. The two of you can amicably figure out what makes sense for both of you and your child. If you cannot agree, a judge will ultimately have to decide whether you will be able to take the child, once it is born, out of the state and away from the child’s father. Generally, courts don’t want a parent to move a child away from the other parent but if there are specific positive reasons that will benefit the parent and the child they may agree. Often if a parent moves to be near family and a support system, the court may find that is in the best interest of the child. The question of moving while you are pregnant, before a child is born, is certainly an issue and really best worked out by agreement between the two of you with the help of a trained mediator. Good luck and I hope this answer helps. 

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I need a Qualified Domestic Relations order.

Additional Information: Do I need a lawyer to draw it up?  Husband is 64 but he was married to another woman while he was a Teamster. To collect his pension he has to pay her half according to his divorce agreement. The Teamsters say they need a Qualified Domestic Relations Order. ANSWER: I would suggest…

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Have a job offer but it is a reduction in pay, will I get modification to alimony?

Additional Information:

I have been ordered to provide alimony to my wife, and I’ve been doing that for some months now. I have a new management job offer in Brazil where I’m originally from, and I want to really take it. Problem is when converting my pay back to US dollars, it reduces my pay significantly by 40%. Can I take up the job first and then apply for a modification? Please advise if that is the right way to go about this situation.

ANSWER:

You may want to consider post-divorce mediation to deal with a modification to your original divorce agreement.  You would be able to meet with your ex-wife together with a neutral trained mediator to deal with the issues that would arise with your new work position.  Your ex-wife may be able to understand the opportunity that this job offer affords you: promotion to management and, a move back to your home country.  You could frame this as a positive opportunity for you, and not a negative turn of events for her. 

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Divorce agreement doesn’t say anything about college tuition.

Additional Information:

I got a divorce 8 years ago in New Hampshire and my ex-wife moved the children to Massachusetts 4 years ago. There is nothing in the divorce decree about having to pay for college.  I can only afford in state tuition. My ex wife refuses to have me involved in the college planning stages and every time I talk to my kids privately, I receive an email disputing what I have discussed. All the schools on their lists are either private or out of state, all of which are very expensive. Can she take me back to court and can a Massachusetts judge decide to make me pay for these expensive schools?

ANSWER:

This is a very difficult time when you want to encourage and help your children yet finances are, of course, an issue. It also seems as though you have 2 children going to college at the same time, which creates an even greater financial burden. A judge would look at the finances of the family – and since you clearly desire to help your children as much as you are able, a judge would take that into consideration. It would depend a lot on the ability of you and your ex-wife to pay for college educations, also while balancing the need for both of you to maintain your retirement accounts and ability for both of you to save for your futures. Parent loans, student loans and aid may all figure in to the plan.

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Divorce and division of property without going through courts?

Additional Information:

We live in Massachusetts. I’ve been married for nearly 21 years. We have a house and lots of “stuff”. My wife wants a quick divorce and wants to work out division of property without courts. Our youngest child will be 18 in a couple months. It sounds like it may work if you’ve been married for 2 years and have no property to speak of but questionable for a couple like us.

ANSWER:

You have a number of options to get divorced fairly quickly and amicably in Massachusetts. You can consider divorce mediation where the two of you would meet with a trained neutral professional lawyer/mediator who would discuss with you all the issues you need to agree upon in coming to a comprehensive divorce agreement. The two of you would be able to work out your property division and other legal issues on your own without court intervention. 

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My husband and I are divorcing but I am overwhelmed and in a dire financial position.

Additional Information:

My husband and I have recently separated. He is from a wealthy family and already has his lawyer in place. We have a 2 year old daughter together. I am trying to file for a legal separation, as well as set up some sort of custody arrangement for our child. I am in a dire financial position with no friends or family nearby who can lend a helping hand. I feel as though there MUST be something that can be done, I’m just not sure what, or how to go about finding out. I am overwhelmed and need some advice.

ANSWER:

You may want to consider divorce mediation as a way to handle your concerns in coming to a final divorce agreement.  Through mediation you can address your concerns about finances and a parenting plan, without waiting for a lengthy court process.  Working through these issues in a neutral setting will allow you to clarify to your husband your needs for a stable financial situation as well as a consistent parenting plan.  The mediator would assist in making sure the best interests of your child are considered first and foremost.  The cost of mediation could be paid for by your husband, and he would still have the opportunity to use his attorney to assist him in the mediation process and to review any mediated agreement.  It would also be of benefit to him to consider mediation, because if you are with out an attorney, the process is going to much more time consuming and difficult for him as well.  Mediation allow couples who are separating and divorcing to decide for themselves issues relating to their finances, property and children in a supportive setting designed to encourage agreement.  

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My ex has declared bankruptcy. Will he still be required to pay back money I lent him?

Additional Information:

My divorce agreement states husband must pay back $80,000 I lent him to pay taxes.  Can I still get it now that he has filed bankruptcy Chapter 13? He has not paid me for more than two years. He was supposed to pay me $1700 a month. Now he has filed bankrupcy. Can I get my money?

ANSWER:

The language of your agreement in this case is key. If it was characterized as “support” it would not be a debt that can be discharged in bankruptcy.  If it was characterized as merely a loan then it could possible be discharged. You may want to consider mediation as a way of working this issue out with your husband. Even if the legal answer may not be what either of you may want, mediation is a way for you two to compromise in this situation in terms of what is morally the right thing to do. He may not be able to pay the monthly amount original intended but may be willing to pay less or for a longer time given the financial circumstance. I hope that you two will be able to work this out, especially if you have children involved who may need to access some of this money for college. 

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Ex-husband doesn’t want to hold to our divorce agreement, daughter’s emancipation age is 23.

Additional Information:

My daughter attends  a college in the Boston Metrowest area, but  she doesn’t drive.  I take her 90% of the time both ways as she has a learning disability and panic attacks. She can’t work during college due to the case load of the program. Her father & I were told during orientation as one of the qualifing stipulations, that she shouldn’t work, which we agreed upon before she was selected. We also told her we would not sell the house until she got out of school in 3yrs, which would be the emancipation age of 23.

My ex said he is going to make me sell the house. Doesn’t care about the argeement anymore. I don’ t have money to buy it, our daughter will suffer over this now.  Doesn’t the emancipation law in MA allow me to stay in my home till she is 23?

ANSWER:

Since the answer to this question depends on many factors, your original divorce agreement, whether your later agreement was in writing, and the current finances of your family, you may want to consider post-divorce mediation.  You would be able to meet with your ex-spouse with a trained neutral professional, to help figure out what makes sense given the current situation.  There is no specific “law” that determines the outcome of the timing of the sale of marital property.  It depends on many considerations.  It would certainly help if you and your ex spouse were able to resolve this without causing great deal more conflict, as your daughter is clearly suffering as a result.  Mediation would allow the two of you to decide how to deal with the sale or buy-out of your home, keeping in mind the interests and desires of both of you, as well as the issues facing your daughter. 

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Years after a divorce, can you petition for joint custody?

Additional Information:

My ex-wife and I got divorced ten years ago and I got sole custody of our now 15 year-old son.  She hasn’t seen him much over all these years and recently she’s been making an effort to get to know him.  My question is can she petition for joint custody now?  We live in Wellesley and she lives in NH, about 90 minutes away. Our son already feels conflicted.

ANSWER:

It is certainly very important for a child to have significant and healthy relationships with both parents.  In your son’s case, his mother was not fully available to him during the past ten years.  Her efforts to get to know him and to have a relationship with him can hopefully be a positive force in his life.  Given his age, his feelings about his relationship with his mother should be considered.  Anything you can do to encourage this relationship would certainly benefit your son, assuming that her contact would not be harmful to him.  Given the lack of contact over the years and the physical distance of your residences, it would be unlikely that a court would grant joint physical custody.  You  might consider a therapist for you son so that he can work through the feelings that have arisen as a result of his mothers reappearance in his life.  You might want to consider mediation as a way you and your ex-spouse can have a dialogue about her future relationship. 

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Can a divorce mediator help us create a post nuptial agreement?

Additional Information:

My husband and I have been married for almost 2 years. We unfortunately did not sign a prenuptial agreement.  We are working on our marriage and I’ve heard about post-nuptial agreements. Besides figuring who would get our Needham home, and division of other assets if we end up getting divorced, can we put in division of responsibilities to run the household and family? Is this something a divorce mediator could help us with?

 ANSWER:

A postnuptial agreement, also known as a post marital agreement, is an agreement on how spouses would divide their property and deal with support issues in the event they divorce, as long as the agreement is not made “in contemplation”of divorce.  The court has found this type of agreement enforceable if it meets the following criteria:  the opportunity for each party to obtain separate legal counsel of their own choosing; there was no fraud or coercion in obtaining the agreement;  all assets were fully disclosed by both before the agreement was executed; each party knowingly waives in writing the right to a judicial equitable division of marital property and assets in the event of divorce; and  the terms of agreement are fair and reasonable at the time of execution and at the time of divorce.

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We are going to separate or divorce. How are assets split?

Additional Information:

We are in our 50’s and are going to separate or divorce.  My wife works and makes approx $27K per year. I am currently collecting unemployment 4-6 months remaining at about $650/week.   Also, would she be entitled to half of my unemployment?  What happens if I get a job after the divorce will there be a provision for that?

ANSWER:

This  question requires a bit more information.  I would suggest that you consult with a local attorney or meet with a divorce mediator.  A divorce mediator would help you and your wife figure out what approach makes most financial sense.  Technically, even if you separate,  your assets are considered “marital” until you are divorced and they are allocated as part of a divorce agreement.  You could consider a Post-Marital agreement, only in the event that you want to work on and continue your marriage,  A Post-Marital agreement would allocate your assets now, without divorcing, and would be used as a divorce agreement if you decided to divorce in the future.  The intent of a post marital agreement is that the parties intend and desire to stay married but want to take care of the financial decisions now in the event they are to divorce as a way to help secure the marriage. And yes you would need to make a provision to deal with you resuming employment.  Divorce Mediation is a method of alternative dispute resolution that a allows a neutral professional to assist couples in making decisions for the families and finances  in a non-adversarial manner that is often quite cost effective.  Good luck with your decision in any event. 

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We can’t agree to who gets what property when we divorce.

Additional Information:

My husband and I are divorcing.  He offered to buy our real estate in Dedham, MA for less than the appraisal amount but refuses to buy our vacation property in Florida for the appraisal amount.  I want the property in Dedham and not Florida.  What are my options?

ANSWER:

The issue of how property, real estate or otherwise, is assigned to either spouse, is one that is part of a negotiation in the context of a divorce as a whole.  It is up to the two of you to determine, or a judge to decide, who will end up with each property or if you cannot agree, the property would need to be sold. You may want to consider divorce mediation, which would allow the two of you to decide for yourselves, with the help of a trained mediator, how your assets will be divided between you. You may need to put these properties on the market if you can’t agree on buy- out prices, or who will get each property. Mediation can allow you a supportive and neutral environment to work through these issues.

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We’ve been separated for 4 years, when we divorce, wilI I be entitled to portion of the home?

Additional Information:

My husband owned a home in his own name before we were married.  We are now divorcing.  Am I entitled to a portion of the home’s worth?  We’ve been married for a little over 10 years but have lived apart for 4 years. I was the one who left. He also made a substantial withdrawal from our joint checking account when we separated. He took that money & opened a checking in his own name. Am I entitled to recover half of that amount? I’m not asking for any things we purchased during the course of our marriage, just basically the things that I brought into the relationship.

ANSWER:

You may want to consider divorce mediation as a way to work out these issues with your husband in a neutral setting. Questions of who gets what can be addressed by looking at both sides of the situation. Property that was owned prior to a marriage could be considered a marital asset subject to division depending on some different factors – was this the house you lived in? was it a rental and the income was used to support your family lifestyle? what other assets are there? These answers to these questions along with some legal information would go a long way in helping the two of you craft a fair and equitable divorce agreement. 

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We are divorcing, if I move out, will I be entitled to part of our home?

Additional Information:

My wife just ask me to move. I have no problem as I have a place to go. However, with me agreeing to her request, will this hurt me in the eyes of the court? Will the judge look at it and say “Well you moved out, you’re not entitled to the house or any part of it?”

ANSWER:

You may want to consider seeing a divorce mediator.  It seems that your separation at this point is relatively amicable and could continue to be so with the use of mediation.  Since it is realistic that one person will have to move when couples separate and divorce it is so much better when it can be by agreement. If couples don’t agree, the issue of who leaves can become very contentious and costly.  I often suggest that couples prepare an informal written agreement between them, detailing that one party is moving in order to facilitate an amicable separation and that that person is by no way giving up their rights to the home, other marital property or the children.  That often makes couples feel more comfortable moving to the next step.  Mediation allows divorcing couples to decide the financial  and parenting arrangements with the help of a neutral impartial mediator experienced in conflict resolution and family law.

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Does my husband have a right to a percentage of future inheritance from my mother?

Additional Information:

I am in the process of getting a divorce. In his divorce proposal, my husband is asking for a percentage of a future inheritance I may get from my mother. My mother is still alive and well and I hope will be for quite awhile. Does he have a right to such a claim?

ANSWER:

Your husband’s potential for future inheritance is part of the equation.  Has he received an inheritance during the marriage that was used during the marriage? If so, then the idea of receiving a percentage if and when you receive an inheritance is reasonable.  The big questions are: what and how large is the inheritance?  If you are uncomfortable with his receiving a percentage, another optionis to suggest that, if you have children, you will give that percentage to your children.  These and many other options can be raised and discussed in divorce mediation.  Mediation might allow you to have more information as to why your husband is requesting a portion of your future inheritance. 

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Does a soon to be ex-wife have rights to a future inheritance in a divorce?

Additional Information:

My wife and I have been married for 19 years and have 2 kids. We live in the Boston metrowest area and are going to get divorced.  She is after my future inheritance from my mother who lives overseas.  I am the sole beneficiary but nobody knows how much the inheritance will actually be.  Will she have rights to the inheritance?  Also, my mother wants to transfer ownership of an apartment to me so she won’t have to pay tax on the profit of the sale.  I would then leave the apartment to my kids upon my passing. Can my wife go after this property ?

ANSWER:

You may want to consider divorce mediation to deal with the issue of inherited assets. Factors to be considered are whether your wife has the possibility of an inheritance in the future or if she had received an inheritance during your marriage that may have been used by you both. The answers to these questions could help the two of you decide together and come to an agreement as to the inheritance you may receive from your mother.  If it is agreed upon that she might be entitled to some part of the inheritance, a percentage could be agreed upon based on what you actually receive.  Also, you might discuss the idea of taking some of the inheritance to be used for college education of your children.  The use of divorce mediation can provide many options and ideas that can be used to address this type of issue. 

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Can my wife legally keep me from seeing my children while a divorce is in progress?

Additional Information:

My wife recently filed for divorce. We had been separated for about a year beforehand. About 2 weeks before she filed I was unable to reach her or my 2 children.  I used to call the kids every 2-3 days and visit at our home in Dover every 2 weeks or so.  I still haven’t been able to reach the kids or my wife, apart from a single text saying she filed. I haven’t seen or talked to my kids now for over a month. Do I have any options to see them or do I have to file for visitation? Thanks.

ANSWER:

You may want to consider talking to your wide about divorce mediation.  If you had been able to work out financial and child related matters for over a year, it seems that something must have happened to cause your wife to start to handle things differently.  Even though she has filed, it doesn’t meant that mediation would not be appropriate – whether or not she has an attorney.  You could consider emailing her about the option of mediation and some names of potential mediators.  You could explain that it would be better for your children in the long run if you could work out a parenting schedule together that would meet both the needs of the children and the parents.  Generally, the cost of mediation is less than an adversarial divorce process and is intended to reduce the conflict between parents at the time of divorce and after. 

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Can a signed separation agreement be modified without going to court?

Additional Information:

I have a separation agreement that was signed in July 2011 by both parties. We didn’t have a hearing yet, and the agreement didn’t go through the court. I want to update it based on the new alimony law. The other party wants to keep it as is. The other party’s lawyer is threatening to file a motion to have me “advance funds toward any additional fees to seek compliance with the agreement.” What are my rights?

ANSWER:

This may start to become a more frequent issue.  The signed agreement is considered to be a contract that may be enforceable, but without being approved by  a Probate Court Judge as part of a Divorce Judgment, it will not be enforced by the Probate Court.  A Probate Court Judge would have to make a finding that your agreement is fair and reasonable under the current laws.  If this agreement would no longer pass that test according to a Probate Court Judge, then the agreement would not be approved.  You might want to consider divorce mediation for this particular issue.  Clearly there were reasons why the agreement was signed, but was not presented to the court in a divorce hearing.  The answer here of what will happen to this agreement is not clear cut either way and mediation would allow the two of you to deal with just this particular issue.  The legal fees may be quite high to address this one issue.  You could discuss it in mediation and still feel that the balance of the agreement will be kept intact which coming to a mutually agreeable solution in light of the changes in the law and the fact that the agreement had not yet been made a court order. 

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Can my ex just show up at our children’s sports games with disregard to our parenting schedule?

Additional Information:

My ex and I have been divorced for 4 years.  He wants to be there for the kids without regard to our schedule. He unexpectedly showed up at Brookline High last week to cheer on our daughter and her basketball team, and as I wasn’t expecting him it caused a lot of tension which certainly isn’t good for the kids.  Will a mediator be able to help us fine tune our divorce agreement and can our teenage children be part of the process?

ANSWER: 

Mediation can certainly be used to work on issues that arise with parenting plans as the children grow and as your schedules change.  In general, it is important that parents be encouraged to be involved in their children’s activities that are open to the public such as games and exhibitions, regardless of parenting schedule.  This may have been an issue because of the “surprise” factor and that can absolutely be addressed in mediation.  It is possible to involve teenage children in mediation that involves them- it is up to the parents to agree on how that will be accomplished.  Some ideas would be for the mediator to meet with the teenage child separately, or for the child to write a letter about their feelings on the matter. It may also be appropriate for  a child to meet with a therapist to help formulate their needs and concerns.  It is important that one parent not be alienated. 

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Can I use mediation for a divorce modification seeking sole custody?

Additional Information:

We have been divorced since 2008 with shared custody.  My ex-husband was supposed to see our son every other weekend and he saw him the first few times then hasn’t seen him since. I just found out he moved to the west coast (we live in Newton, MA).  Since he moved and hasn’t seen our son for 2 1/2 years, I’d like to get a modification seeking sole legal custody. Is this something that can get worked out in mediation if he lives so far away?

ANSWER:

While it is certainly important that you know where your son’s father lives it is also extremely important that there is some ongoing communication between the two of you.  Although I don’t know the age of your child, it must be very upsetting and traumatic to your son to have gone so long without seeing (or hearing I assume) from his father.  Mediation can be used with technology like skyping, so it is possible to use mediation in long distance situations.  I would suggest that if the two of you can open some lines of communication – it would be far better for your son in the long run. 

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A Divorce Expo?

By Tracy Fischer
This weekend, for the first time ever, a divorce expo is being held in Manhattan and the week before in Michigan.  Modeled after the very popular Bridal Expo these events will combine exhibitors like divorce lawyers, mediators, therapists, collaborative law specialists with make up specialists, life and dating coach’s.  One has the tag line Start over Smart and the other Reducing the Impact of Divorce – Learn Interact Inspire.  The latest innovations in cosmetic surgery and ways to rejuvenate oneself with tips on healthy eating and cooking will be just a few of the exhibitors.  These events are not trying to promote divorce, but instead taking a fact of life that most people feel embarrassed and ashamed about when it happens to them and turning it into a positive.  If you are starting over – start over smart! It makes a lot of sense.  People that are in the process of thinking about or going though divorce can turn the situation they are in from one of depression to inspiration.  The opportunity is there to get a great deal of information all in one place. The massage kiosks, dating coach’s, keynotes on the new opportunities in dating on line are all designed to encourage and inspire those attending.  Instead of feeling alone, these events encourage a community of individuals all going through the same life changing event.  And the purpose here is to see life changing for the better. It’s a great idea who’s time has certainly come.  ~ Attorney Mediator Tracy Fischer

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In the state of MA how do I prove common household?

Additional Information:

I’m paying alimony but my ex wife has had her boyfriend living with her in Danvers  for a year now.  How do I prove they are a common household?

ANSWER:

I am assuming that you are inquiring how to modify or stop your alimony payments to your ex-wife given the the new alimony statute.  The new amendments say that general term alimony may be suspended, reduced or terminated if a showing is made that the recipient has maintained a common household with another for at least 3 months. Some of the factors to look at may be statements, economic interdependence, community reputation etc.  You should review your divorce agreement. There may be a clause requiring mediation or other alternate dispute resolution methods to be used in seeking modifications of your agreement before filing with the court.  If your alimony was permanent it can not be modified.  It is likely that you and your ex-spouse would be able to mutually come to an amicable agreement in a  mediation setting without needing to “prove” these factors.  Mediation of this post divorce modification may be far less costly. 

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How hard is it to get a divorce in MA due to adultery?

Additional Information:

I just found out my husband has been cheating on me.  He denies it but I am certain of it.  How hard is it to get a divorce in MA due to adultery?

ANSWER:

Adultery is often a symptom of a marriage that may not have been working to begin with.  Although it may feel that this situation is not of your doing and not by your choice, the end result may be a better one for all involved now that you are aware of the true situation.  You may want to consult with an attorney and you also may want to consider divorce mediation.  In mediation the divorce would be based on an irretrievable breakdown of the marriage. In mediation, you will have the opportunity to discuss with your spouse the hurt feelings, mistrust and anger that has occurred.  The ability to have a safe forum to air some of these feelings allows people to more easily come to agreements, rather than turn to vindictive actions and attempts to make the other pay, emotionally and financially. Mediation is not the answer for everyone, but it can attempt to address a very difficult situation. 

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How long do I have to respond to a proposed Divorce Agreement?

Additional Information:

My wife and I are getting a divorce.  Her lawyer sent me the proposed Divorce Agreement. How long do I have to respond?  Is there any limit of days?  What can I do if I do not agree to this proposal?

ANSWER:

You may want to consider using divorce mediation  to come to agreements on the area of the proposal that you don’t agree with.  The mediator is a neutral independent professional who would not be representing you or your wife.  Your wife may still use her attorney during the mediation process but it would be the two of you, with the help of a neutral independent third party, who would discuss, gather further information and create various possible options.  The two of you would fairly and equitably work out the details of the divorce agreement so that you both felt that it was fair and reasonable given the circumstances. Mediators have various professional backgrounds and different levels of experience. 

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What do I do if I cannot afford an attorney?

Additional Information:

My husband and I would like to get divorced.  We live in the expensive Greater Boston area.  What do I do if I cannot afford an attorney?

ANSWER:

Area lawyers charge a variety of fees. Retainers are required when the attorney feels the divorce will clearly involve court hearings. If you feel your divorce will be amicable, you may find an attorney who would be willing to work with you and not charge a retainer.  You may also want to consider mediation if you feel that you and your spouse can sit together in a room with a neutral third party to come to agreements on the issues involving children, support, division of assets and debts.  Often there is no retainer needed and the parties can share the hourly fee of the mediator. The time involved may also be less, as there is no need for court appearances. 

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My ex comes to my house for his parenting time with our daughter.

Additional Information:

My ex-husband and I still jointly own our home in Dedham where my daughter and I live. He frequently comes to spend his parenting time in my house with our daughter. Our daughter is special needs and we both agreed that I would be a full time stay at home mother in the divorce agreement, and he pays the bills.
Do I have any rights to privacy?

ATTORNEY ANSWER:

It sounds like you and your daughter’s father have really gone out of your way to make her life as comfortable and consistent as possible.  You have clearly focused on what is in her best interest, and it may have been somewhat to your detriment.  The issue that you are addressing is one that comes up quite a bit in parenting plans like yours.  Privacy is a big concern.  Of course, you have rights to privacy but what is the best way to accomplish this?  If you are unable to discuss with him how his spending time in the home that is your primary residence is affecting you, you may want to consider mediation.  With the help of a neutral third party you and he could address certain ground rules that would make your parenting plan more comfortable for both of you. One idea could be that when he comes over, he only stay in certain parts of the house. As an example, the bedroom area could be off limits.  If it seems that the frequency of his visits is part of the problem, maybe longer time periods that are less frequent could be a solution. Your daughter’s age and the logistics of the current parenting plan are important factors to consider.  He may not be aware of your concerns for privacy, especially since he has a private place for his residence.  You will need to weigh the benefits against the negatives of the current plan you have worked out. Mediation can be a wonderful resource for a situation like this. 

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Can I move with my kids before our divorce is finalized?

Additional Information:

My husband and I are getting divorced. Can I move with our kids into my mother’s home in Westwood and enroll them in school there before we complete our divorce mediation?

ANSWER:

The most important question here is – does your husband – the children’s father – agree with your decision to move with the kids and enroll them in a different school.  This may be the best solution for all  of you. Have you been able to discuss this issue with your husband?  If he agrees there would be no problem.  If you are unable to discuss it or he does not agree,  mediation would allow the two of you to work with a neutral mediator to agree on decisions that would be in best interest of your children.  You would be able to take time to arrange and plan a parenting plan by agreement. with  the help of a trained professional who would help you to draft a parenting plan that works for your work schedules but also takes into account the developmental stages of your children. 

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My teenage daughter doesn’t want to spend her weekends visiting her dad anymore.

Additional Information:

I have been divorced for 8 years. My 16 year-old daughter lives with me in Danvers and doesn’t want to visit her dad 2 hrs away every other weekend.  She hates giving up her sports and social life every other weekend.  Her dad gets very angry when she asks to compromise, and just spend part of the weekend with him. What rights does my daughter have?

ANSWER:

This is clearly a difficult situation for both you, your daughter and her father. You do not indicate that there is any specific problem with the relationship between you daughter and her father, other than the distance involved in spending time together. This plan may have been working for a number of years but clearly isn’t working now.  The two of you, as parents, should be commended for having consistently made this parenting plan work over these years with the distance involved. The ability to have this regular contact with her dad has certainly been a great benefit to her. The question of her rights, while important, is somewhat confusing.  The rights each of you has in determining how a parenting plan works is really not the issue of most importance.  What is crucial is figuring out a way that your daughter’s needs and concerns, as well as her fathers, can be addressed in an emotionally healthy way with a positive result.  Family mediation can be used to assist your daughter and her father to resolve this conflict and to hopefully figure out a more appropriate parenting plan. The fact that your daughter is not happy with the current plan is enough to seek to modify the current arrangement.  Her concerns and unhappiness absolutely need to be addressed, but in the context that it is crucial for her to maintain a close and consistent relationship with her dad. Mediation is a way to do this. 

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I’d like to plan future mediation sessions after divorce.

Additional Information:

My husband and I are getting divorced and have agreed to try mediation.  We have 3 young children, oldest is 8 years old.  The kids are all handling the news of the divorce differently and we know that they’ll adjust and also that their needs will change as they get older.   Before we decided to get divorced we were looking to move, but in the same town of Salem.  Wondering if we should just put that off so there won’t be too many changes for the kids?  Also, besides finalizing financial matters and our parenting plan, is it possible to include in the divorce agreement that the parents will re-visit the agreement at predetermined times in the future? I know it will help me stay focused on the kids and on our future hopefully with a positive attitude about the separation.  Would we work with the same mediator for future appointments to re-visit the plan?  It would be nice to work with the same mediator, as s/he would get to know our kids.

ANSWER:

Regarding the children and moving, there are a few different issues to consider.  If you are separating and divorcing now, one of you will be moving now anyway – so they will have to deal with this change.  If you are moving purely to upgrade your house or neighborhood then maybe this would not be the best time, given the number of changes the children will be dealing with. If you are moving for financial reasons and need to downsize, then you may not have the luxury of putting this move off. 

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Should I consult with a divorce attorney before we begin mediation?

Additional Information:

My husband and I are getting divorced and have agreed to go through mediation. We are on good terms and are basically going to split everything 50:50.  I already have a local Marblehead divorce attorney who will review the final mediation agreement but wondering if I should consult with one before we start mediation or will that just confuse the issues?

 ANSWER:

The answer to your question is “What would make you most comfortable?” In mediation you will be in the presence of your husband – are there questions that you would like answered privately? The mediator could not do that.  You are in control of the divorce process in mediation- if you feel that you would have more information by seeing an attorney first that would be fine. 

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Can I ask for child support and my husband to move out without an actual divorce?

Additional Information:

My husband and I have decided to separate and will likely get divorced.  What do we do in the meantime in regard to finances and parenting?  I am a stay at home mom in Wellesley so I don’t have my own income.

ANSWER:

You may want to consider divorce/family mediation which would allow you and your husband to speak with a neutral mediator to come up with an agreement for a specific period of time.  This agreement might provide for child support, deciding who would live where and how your children will spend time with their father.  It makes sense to take the time to make such an important decision as to whether your want to divorce.  Sometimes a separation and some therapy may make a decision clearer.  Certainly when children are involved, coming to an agreement for how each of you will spend time with the children and where they will live would be better for all.  

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My ex says he won’t pay for our last son’s college tuition.

Additional Information:

I thought that our separation agreement was clear, and he paid tuition for our oldest two children to attend well-regarded Boston area colleges. Am I missing something?

ANSWER:

As the cost of college has become such a huge cost, many parents are having difficulty paying for college. Given that you already have had two children go through college it makes me think that you have already dealt with a lot of the issues that people argue over such as choice of college, location and how the decision is made. Does he feel that he had input into the choices being made? Is he a part of the process? Has he suffered a financial setback? As college is a child related expense, it is usually modifiable in the event of a change in circumstance.  He may feel that he has a reason to change your agreement.  Mediation is a process that would allow the two of you to meet with a neutral third person to discuss these issues and to figure out an acceptable solution. Mediation is often used by parents when issues come up in the years after they have divorced. It would certainly be difficult for your son if his parents become embroiled in a serious conflict over his college education. 

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Can you please explain the law in regard to divorce and dividing assets?

Additional Information:

My husband and I are divorcing after a 6.5 year marriage.  We have 4 young children under age of 6. I am currently on an unpaid maternity leave from my job as a teacher. My husband owns his own periodontist businesses. My name is not on his business. We also own 2 condo’s and a house in Weston.   Can you help me understand the law as related to divorce and business ownership and everything we own together and child support and alimony?

ANSWER:

This is certainly a difficult time for you – and a time to determine what will happen in the future.  With 4 young children, divorce mediation would provide a resource to allow you and your husband to come to parenting and financial arrangements that would be in the best interest of all.  Generally, any property that is owned during a marriage, regardless of whose name is on it, is considered marital property subject to equitable division.  Something like a business which provides the main source of income for your family is a bit trickier to determine.  It is hard to see a business as an asset but also as a source of income.  The income that is derived from the business would be used (along with your income when you go back to work) to calculate child support. With very young children it is so important for their emotional health, that the conflict between the two of you not become even greater during the separation and divorce process.  Mediation can provide an avenue that allows you both to make practical arrangements for your children with the help of a neutral third party.  Studies have shown that it is not necessarily divorce that is harmful to children, but the conflict between the parents.  Often that conflict can continue for many years in a litigious and adversarial divorce.  Although your finances and lifestyle will not be the same as now, you will certainly be able to make it financially if you were to separate. 

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Massachusetts Probate Courts Underfunded and Overworked

By Tracy Fischer The Massachusetts Bar Association has produced a video to highlight the results of underfunding of the Probate Courts.  In this video Judges, professors and court officers discuss the difficulties in administering justice when the resources they had depended on are no longer there.  It is clear from these interviews that hearings and…

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I’m afraid I won’t have enough money to hire a divorce attorney

Additional Information:

My husband and are are getting divorced.  We have about 40k in our joint savings account, but if he takes half or more, that doesn’t leave me enough for a lawyer does it?

ANSWER:

You may want to consider divorce mediation.  If you and your husband feel that you are able to sit down with a neutral independent third person to help you go through all the issues that you need to decide in coming to a comprehensive divorce agreement, then mediation may be something to consider.  Mediators are often attorneys or therapists and are trained in conflict resolution techniques and in the area of family law.  Often mediated divorces are less expensive and take less time than litigated divorces.  It is important and recommended to use an attorney during the mediation process for advice, consultation as needed, and for review of the agreement.  It is crucial to make sure the mediator you choose is experienced and credentialed in the field of divorce mediation. 

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My wife and I are not yet divorced, can I take our son out of the country for vacation?

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My wife and I are going to get divorced, but we are not legally separated yet.   Can I still take my son on vacation out of the country?  My ex doesn’t want me to take him to a vacation to Brazil, she thinks I will keep him over there.  My mom and dad want to see their grandson, they miss him and we used to go every year, but with our separation this year we couldn’t go. I would never keep  my son away from his mom because I always believe kids should be close to their moms. All I want is 3 weeks vacation with him. What do I do?

ANSWER:

Your situation seems perfect for mediation. You and your wife can meet with a neutral third person to work out parenting arrangements and a plan as well as all the other financial decisions that need to be made in a divorce. Given that you are not divorced, your wife has a valid concern. Clearly, there is a lack of trust between you at this point. That is certainly not uncommon during the time couples are separating and divorcing. Working on some written agreements and possibly finalizing your divorce prior to leaving might be some ideas that would relieve some of the concerns your wife has. There are many suggestions that a mediator could make to come up with a viable solution to your dilemma. You do not mention the age of your son, but it would be doubtful that you could take your son out of the country without your wife’s consent.  

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Is it better to have an aggressive divorce attorney or a collaborative one?

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I’ve heard about collaborative divorce attorneys in the Boston area.  What exactly is a collaborative divorce attorney? Which is the best use of our money for our divorce?

ANSWER:

Technically when an attorney is acting as a “collaborative” attorney, the hope and intention is that the other party will also engage a collaborative attorney.  In that way, both attorneys have the same goal, which is to negotiate a divorce agreement through the use of four way meetings.  The tenor of the process would be negotiation and settlement, and neither attorney would be threatening to go to court.  The theory is that without the threat of court or a judge making a decision hanging over either parties head, the husband and wife will come to a fair and equitable agreement.  Many collaborative attorneys agree at the outset of the case that if an agreement cannot be reached the parties would have to get other counsel.  The thought of starting over with new attorneys is such a negative that will encourage parties to reach agreements.  Aggressive divorce attorneys would handle a divorce in a completely different way, by litigating the matter in front of a judge.  Many couples would prefer to decide for themselves the most important decisions in their lives, rather than a judge who has very little time to hear and understand all the issues. 

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Going through a divorce with financial matters now my lawyer isn’t returning my calls.

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I work part time as software engineer in Needham, my husband works full time same type of position but he works for a big company in Boston and makes four times what I make. I make $80k, he makes $300k.  We have two young children and have been married 6 years in MA, we’re going through a divorce and now my lawyer is not returning my calls. What can I do?

ANSWER:

Given that you have young children, I would recommend that you consider divorcing by using a neutral and independent divorce mediator.  A mediator may be an attorney.  You may use mediation even if you already have an attorney.  At this stage it is so important that you maintain a good working relationship with your spouse, not as husband and wife, but as parents.  By using mediation, you are not flighting against each other but working together to come to a fair and amicable divorce agreement.  Although I understand your questions are about finances, the conflicts and disputes that come up about the finances can often affect your relationship, which has a direct result on how your children will ultimately handle the separation and divorce.  By working together with a mediator, you will be able to figure out how your combined incomes will enable the two of you to live separately.  It is important to choose a mediator who has significant background and experience in this area.  Look at the Mass. Council on Family Mediation website  to find experienced and certified mediators. 

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My wife and I are divorced, but now I can’t get a loan for my own home.

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I’m recently divorced and my ex-wife can’t refinance our house, so now I can’t get a loan to purchase my own house.  What can I do?

ANSWER:

This type of scenario is becoming more and more common given the stricter financing requirements.  This would be a very good situation for mediation. If your divorce agreement does not say what would happen in the event she can’t refinance, the only options are attorneys and court – meaning a judge would have to decide, or the two of you figure out how to deal with this situation by agreement with the help of a neutral third party mediator.  There are various options that a mediator could explore with both of you, such as time frame requirements, considering selling the house etc. These options can be better explored with the two of you together.  You may have come to the agreement that your wife stay in the home for reasons that are still valid, so these concerns would need to be factored in.  If children are involved, mediation is a great option for this type of issue.  You should make every attempt to keep the conflict between the two of you from escalating over this issue for the benefit of your children. 

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My husband and I are separated and I’m left with no health insurance.

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I was in the process of being added to my husband’s health insurance when we separated. He then canceled the process and left me without insurance. In Massachusetts everyone is required to have health insurance coverage.  We have not yet filed for divorce but we no longer live together.  What can I do regarding health insurance coverage as we’re figuring out the divorce details?

ANSWER:

This is certainly a difficult situation- perhaps you should consider divorce mediation. The two of you would work with a neutral third person to help figure out the various logistical issues that need to be decided when couples separate and divorce.  It sounds like you were able to figure out how to separate by agreement, which is certainly a good start. The communication between the two of you seems to have broken down and your husband may not realize the situation you are in and how it will also affect him.  The issue of health insurance is extremely important – in mediation you would be able to discuss how long you would be on the policy, how the two of you would deal with the cost, and what would happen when either of you remarry.  There are also many other issues that would need to be addressed in arriving at a comprehensive divorce agreement.  Mediation is a way to divorce in a more amicable and economical way. 

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Massachusetts Council of Family Mediation Annual Conference

By Tracy Fischer

A divorcing couple can work with a neutral mediator and take control of the process in a more timely manner than going through the court system.

I recently attended the Massachusetts Council of Family Mediation’s Annual conference and was able to hear news from the Probate Court by Keynote Speaker Paula Carey, Chief Justice of the Probate and Family Court.  Her comments about the Probate Court system, while very positive in general, highlighted areas of major cutbacks due to budget constraints. Of major importance is that over the next year the court will lose 10 Probate Court Judges.  There is no guarantee that these positions will be replaced or when. Over the past 5 years, the number of law clerks used by the Judges of the Probate and Family Court has gone from 24 to 4.5 currently.  Lawyers and litigants will have to wait even longer for Judges to render decisions or even to have hearings scheduled. With the numerous potential modifications that will be filed under the new Alimony Reform Act of 2011, the case- load is only continuing to grow.  It is clear that there is a significant benefit to couples and families who have the opportunity to privately and amicably decide parenting arrangements for their children and how to divide their property. With the help of a neutral mediator, a couple can take control of the process and retain the ability to move forward in their lives in a much more timely manner than would be available through the court system. ~ Attorney Mediator Tracy Fischer

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Divorce settlement wasn’t fair, I’d like to reduce my Child Support Payment.

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I’d like to take my ex-wife back to court, in hopes of  lowering my Child Support Payment. I pay over 2K a month, but here is the catch, I have the kids 50% of the time per the agreement. I also pay for their cell phones and insurance, and half of everything else (except not clothes).  I understand that in Massachusetts, law calculates child support payment based on my salary and her salary and how many kids we had (2). But I feel that I am getting the short end of the stick here, with no money left to do anything with the kids when I have them. She is living VERY well, better than me (bigger house, nicer car) I thought the law was to make the divorce fair to each party.  What are my chances of reducing my child support if I take her back to court?

ANSWER:

Since you each have the children fifty percent of the time and you don’t mention any other difficulties except financial, you may be perfect candidates for mediation. I understand that you would like your child support to be lower, however, I am sure that you do not want to harm the relationship you each have with each other as co-parents. Mediation can provide you with a setting that is more conducive to reaching agreement that will be in the best interests of all involved than “going back to court”. Perhaps there are other changes that need to be addressed at this time. Your agreement may have called for review of each others financial information from time to time. Mediation could provide you with the opportunity to have these discussions in a way that will not cause further damage to your relationship.  

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Is a prenup legally binding in MA? A lot has changed and we’re now divorcing.

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I signed a prenuptial agreement before getting married to my husband.  This was years ago and now we have a house in Weston, four children and are going through a divorce.   Is the prenup legally binding in MA or can we modify it now as we go through mediation?  He had a successful start up business in the early 90’s and the prenup excludes me from these assets.  He sold the business and since then we’ve been living off the proceeds and he hasn’t earned much of an income.  How will these matters be addressed in mediation?

ANSWER:

Clearly a lot has changed since the prenuptial agreement was signed.  It is important to know exactly what the prenuptial says.  The addition of children to your family may have been contemplated in the prenuptial along with what would happen if you divorced after a certain number of years.  In general prenups are legally binding, but they must adhere to certain fairness factors that can be reviewed during the mediation process. The actual assets that were considered “separate” under the prenuptial also need to be clarified.  The fact that you have been living off the proceeds of the business sale will also need to be addressed.  In mediation, all the factors will be taken into consideration, with the ultimate goal to be a fair and reasonable agreement that provides adequately for both of you. 

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What’s the best way to handle financial matters in a divorce mediation?

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We’re going through divorce mediation.  What’s the best way to handle the financial matters?  My husband moved out of our Peabody home about a year and half ago.  We’re on good terms and share custody of our 2 children.  He currently pays for extracurricular activities for our 2 children and I’d like to ask him for more financial support.  I am also unsure what to do about filing taxes this coming year.

ANSWER:

The answer to your question really depends on what amount of income each of you have. The fact that you share custody of your children is an important factor in how support is determined but most important are your exact incomes. In mediation, you can work together with the mediator to figure out the appropriate amount of support using the child support guidelines and the particular expenses for your children.  It is important for you and your husband to come to some type of agreement on how to file taxes while you are still married.  If one of you chooses to file separately without consulting the other, there may be significant negative tax consequences for one of you.  Again, this is something that can be addresses in mediation. 

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Divorce and visitation schedule for extended family members?

Additional Information:

My husband and I are getting divorced.  We are divorcing amicably and have decided together that the children will live with me and see their dad every other weekend and Wednesday nights.  Will a mediator help us figure out a visitation schedule for grandparents and aunts/uncles who will want to see the kids?  His side of the family is blaming me for the divorce, and they are being hostile toward me so I’m not feeling very good about frequent visits by his family.    Also, can I request that their visits be supervised by me? I want to be around because I worry that they will bad-mouth me to the kids.

ANSWER:

It is terrific that you have already been able to agree on a schedule that works for both of you.  Generally speaking, the parents are the ones that have time with the children and then it is up to them to make arrangements with their relatives or parents to see the children during that parents time.  Supervising visits can be very difficult to maintain.  Since you and your husband are divorcing amicably, this is something that should be addressed in mediation. You can discuss and agree upon how you will inform the relatives of the types of things that are OK to say in front of or to the children.  You and your husband can explain to the grandparents etc. that when they malign a parent the child is truly hurt by this as it actually has a negative impact on the identity formation of the child. 

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I’d like to go through divorce mediation, my wife wants to hire attorneys.

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I have just told my wife that we should divorce. I would like to go through mediation to resolve as many issues as possible but she insists she wants an attorney. During the course of our 5 year marriage she was the bread winner and only at the beginning of this year did she lose her job. Is there a way to ensure we go to mediation before attorneys have to get involved as I would like to keep costs down? I would prefer monies be available to our daughter.  Also, can I request that our daughter taken out of daycare if my wife is not working?

ANSWER:

The best way to ensure that you can start mediation before attorneys get involved is to have a frank and honest discussion with you wife about the differences in cost and conflict between mediation and using attorneys.  Encourage her to contact some mediators and talk to them about the process and how it can be helpful especially when children are involved.  You can certainly bring up and discuss the idea of changing the day care routine in mediation or on your own with your wife although it may be more difficult than you think.  You may be involved in a contract, your wife may need the daycare in order to seriously job search and it may not be in the best interest of your child to disrupt a routine during this time that she will be experiencing other significant changes in her life. 

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Will our divorce mediator help us with financial issues?

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I’ve always been a stay at home mom in Needham to our 3 kids.  My husband and I are divorcing and he recently said that he’d like me to go back to work to help support the kids and with expenses.  I just don’t know how this will all work out.  That would mean I’d have to pay to put our youngest in daycare and figure out afterschool care for the older two kids.  Will our divorce mediator be able to help us figure out how to handle these financial issues?

ANSWER:

In working with the mediator, you should bring up your concerns about whether the income you earn would make a significant difference in your family budget if there are to be additional daycare expenses. It may seem like a good idea to your husband right now, but looking at it in dollars and cents with the mediator to see whether there will actually be a financial benefit will be very helpful.  It would be helpful for you to think about what additional expenses you might begin to incur when working. You may think about acknowledging to your husband that you understand there is a need for you to go back to work at some point and that you do have the desire and intention to do so.  By expressing this, you and your husband may be better able to figure out a timeline that would make sense financially for the family as a whole.

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I have a question about the division of assets in a divorce.

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When my husband and I got married, instead of a having a lavish wedding, my parents gave me the down payment on a house we bought together in Needham.  It was about $100K.  I am now in the early stages of filing for a divorce, will my husband get half of this asset?

ANSWER:

The length of your marriage and other financial factors that occurred during the marriage are vital pieces of information in this question.  In a mediation setting, you would be able to negotiate and suggest that this downpayment was either money you brought into the marriage or a gift to you and that you should be at least entitled to that down payment back.  The question of whether the home has appreciated in value, and how that additional equity would be divided would be another matter. Generally, both spouses in a marriage are seen as working as partners to pay the mortgage, maintain the home and assume homemaking duties.  Assuming there was no premarital agreement, both you and your husband would negotiate and agree on an equitable way to divide the equity in the marital home.

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Will I be able to keep sole ownership of ski condo after divorce mediation?

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My wife and I are getting divorced and we have our first mediation session next week.  We’ve been married for 3 years and we rent our place in Danvers. I purchased a ski condo in NH while we were dating, the place is in my name only.  Throughout our short marriage she did contribute financially to the monthly mortgage and it’s expenses.  Before we go into mediation, I’d like to know if I will somehow have pay her back the equity she put in to maintain sole ownership?

ANSWER:

The intent and spirit of mediation is that you and your wife are able to arrive at a fair and equitable agreement relative to the financial aspects of your marriage.  “Contribution” is one of the factors that are looked at in determining how assets should be fairly divided.  Since you acknowledge that your wife has contributed to the mortgage and expenses during the time of your marriage, it does seem reasonable that she be compensated for the contribution she has made. With the help of the mediator, you and your wife can figure out what the compensation should be and how and when it can be repaid.  

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Can mediation work if my husband is very powerful?

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My spouse is very powerful and influential, he is the CEO of a Fortune 500  Boston based company.   I, on the other hand, am the opposite, I’m shy and don’t often speak up for myself.  With our personalities, I’m worried I won’t get a fair mediation settlement.  Do I have any hope that divorce mediation will be successful and fair to me?

ANSWER:

It is up to the mediator to make sure that the agreement you reach is fair and reasonable.  The experience and skill of the mediator would be of great importance in your situation,  A highly skilled mediator would be able to correct the power imbalance in the mediation enough so that you would be able to have an open and fair discussion.  It would enable the powerful spouse to start to really listen and hear what the less “talkative” spouses concerns really are.  In cases where there are children, and discussions and negotiations will continue during your relationship as parents, a mediation in this context might be a great learning experience for both of you.  Clearly, it is crucial that you have your agreement reviewed by an attorney and that you feel you have all the advice and guidance that you need so that you will end up with an agreement that is fair.

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Can divorce mediation work for us?

Additional Information:

My husband and I are getting divorced and we’re considering working with a Boston divorce mediator.  He’s all for it as it’ll be less expensive than us both hiring attorneys, but I’m not so sure.  Is it appropriate to go through divorce mediation if my husband has physically threatened me?

ANSWER:

If you feel in any way physically or emotionally intimidated by your spouse then mediation may not be the appropriate choice for you. When there have been significant threats over a period of time such that a spouse feels fearful then not only would mediation not be a good option but it would also probably not work.  Where there was perhaps one incident during a time of heightened emotions over the issue of the divorce occurring, and this was an unusual behavior, then mediation could still certainly be an option as long as both parties felt comfortable with the process.

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