Retirement funds typically fall into two categories: 1 acquired before the marriage; or 2 acquired during the marriage. In a short or medium-term marriage, retirement funds acquired before the marriage may not be subject to division in a divorce. Retirement funds acquired during the marriage are generally subject to division and treated as an asset of the marriage. There are no hard and fast rules regarding the division of retirement funds, however, and a skilled attorney may convince a judge to depart from the conventional wisdom in a given case. Retirement funds may require a special court order to divide the asset pursuant to a divorce.
The QDRO must be prepared by the parties and the retirement plan administrator may need to be consulted. Massachusetts permits either spouse to obtain a divorce based on irreconcilable differences, even if the other spouse objects. Although cooperation between spouses does tend to make the divorce process easier and less expensive. Without cooperation, the divorce is a contested matter that takes longer and subsequently becomes more expensive and procedurally challenging.
Ultimately, a trial may be required if one spouse will not agree to proceed with the divorce; however, even a highly resistant spouse cannot generally stop a divorce from moving forward in the end. A divorce will typically become final ninety days after the Judge issues a divorce decree. May practitioners consider the day waiting a period an anachronism that causes needless confusion.
However, the Nisi period is important, inasmuch as a party cannot re-marry prior to the expiration of the period, and parties remain married for state and federal tax purposes if the Nisi period overlaps with the last day of the tax year i. December 31st. If the parties have an uncontested divorce with a separation agreement, the Judge must first approve the agreement which then has an additional thirty day waiting period.
In these cases, the divorce generally becomes final days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge. The waiting periods allow the parties an opportunity to file an appeal only in contested divorces , reconcile, or notify the court if they believe the other party fraudulently hid assets or income.
A modification can occur to correct mutual mistakes. Conversely, the division of marital assets generally cannot be modified after the final Separation Agreement has been approved by the Judge. Other than issues relating to children and alimony, post-decree modification usually does not occur unless there is a provision in the Separation Agreement to do so, or if the other party committed fraud, used undue influence, or made a misrepresentation.
An attorney is not required for you to obtain a divorce; you have the right to represent yourself. Unless you and your spouse have no significant assets, children or unsettled issues, a divorce can become very complicated. An experienced family law attorney can be of great help during every stage of divorce from filing to litigation, and can significantly affect the outcome of contested divorce proceedings.
At a minimum, you owe it to yourself to seek out an attorney for a consultation before you choose to proceed alone. Usually, each party pays his or her own legal fees and expenses in a divorce. However, if your spouse has sole control of the family finances, and you have no access to funds to pay legal fees, you have a right to file a motion with the Court seeking a release of funds with which you can pay your legal fees. At the end of the divorce, attorney fees may be treated as a liability incurred during the marriage and allocated between the parties as part of the property division.
I’ve Been Served with Divorce Papers…Now What?
Moreover, the court can order legal fees to be paid by a party when the court believes that a party has behaved improperly such as failing to obey a court order contempt of court. However, an order requiring one party to pay the legal fees of the other due to misconduct is rare; it most instances, each party is ultimately responsible for paying the legal fees incurred by his or her attorney. If an order of the court is violated, a contempt action can be brought against the party who violated the order.
In a contempt action, the court can fashion a remedy to correct the behavior in the future or to punish the violation. In order for a court to find a party in contempt, there must be a clear and unequivocal order and a clear disobedience by the party. While contempt is available when any order is violated, contempt for custody or visitation orders may be treated differently. The court may not punish a person who fails to exercise visitation, for example.
However, a parent who refuses to exercise visitation may eventually be subject to an increase in child support or a reduction in parenting time. Typically, if physical custody is granted to one parent, then the other parent will pay child support to the custodial parent based on the Massachusetts Child Support Guidelines. However, a traditional physical custody award assumes that the child spends approximately one third of the time visiting the other parent.
If the time spent with parents varies from one-third with the visiting parent, and two-thirds with custodial parent, then child support may deviate from a strict application of the Guidelines. The Guidelines call for a different formula when time spent with the child approaches an even split.
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Moreover, an argument can be made that failure of a non-custodial parent to exercise his or her parenting time may result in an increase in child support obligations, due to the additional child-related costs borne by the custodial parents. In the vast majority of cases, remarriage has no effect on a prior child support order.
When the Plaintiff files a complaint for divorce, and when the Defendant is served with the Complaint and Summons, each party is subject to an automatic financial restraining order pursuant to Massachusetts Supplemental Probate and Family Court Rule This order prohibits each party from transferring money except to pay usual and customary living and business expenses or to pay their attorney. Violation of this order may be punished as a contempt of court.
Generally, no. The courts will only terminate parental rights when there is another person adopting the child. Such an adoption generally will not occur without the consent of the parent receiving child support. In rare cases, a step parent may agree to adopt a child, thereby releasing a biological parent from his or her child support obligation. Termination of parental rights is a rare and irreversible process, however, that courts generally avoid, absent severe abuse or neglect.
Any attorney can draft a Separation Agreement for an individual. However, Massachusetts has recently adopted a limited appearance representation rule for lawyers LAR which allows ghostwriting as long as the document reflects that it was drafted by an attorney. Under this rule, clients can hire attorneys to draft legal pleadings that the client will file on his or her own behalf in court. Only attorneys who have been trained under this rule may accept LAR clients. The limited appearance rule is not effective in all courts in Massachusetts, however, and our attorneys reserve the right to decline limited representation cases.
In a divorce, within forty-five days after service of the Complaint and Summons on the Defendant, both parties must provide to the other three years of records tax returns, bank statements, investments statements, insurance information, etc. These documents must be produced even if the opposing party does not specifically request them. If you do not have these documents, you must exercise all reasonable efforts to obtain the documents.
Failure to provide these records can result in court sanctions. This rule does not prevent parties from engaging in additional discovery. Every person who appears in a divorce, child support or alimony proceeding that involves money or finances must fill out a financial statement. Your financial statement is likely to be more accurate if you complete the form in advance of any court hearing.
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Financial statement Forms including schedules for self-employment and rental income, and instructions for filling out the forms may be found on our Official Forms: MA Divorce and Family Law Page. If you have children under 18, and are getting divorced in Massachusetts, you must take the parent education class. The course is designed to help parents understand the challenges children face with parents in two households. Check out this blog for a rundown to the new rules for the parent education class that went into effect on May 1, Prenuptial agreements are generally enforceable in Massachusetts.
If there was full financial disclosure and the agreement is free of fraud and coercion, the agreement like likely be enforced by a Court. However, such an agreement cannot contract away rights of children. Property division and alimony can be addressed in a well-drafted prenuptial agreement, subject to approval by the judge. A poorly drafted prenuptial agreement may be found to be unenforceable, however, making the use of a qualified attorney especially important.
For three tips on drafting prenuptial agreements, check out this blog. Rehabilitative alimony is the periodic payment of support to a spouse or former spouse for a definite period of time based upon the expectation that the recipient will become economically self-sufficient after the passage of time. An example is payment of temporary alimony to allow the recipient spouse to obtain an education or job training. Reimbursement alimony is available for marriages of less than 5 years to compensate a spouse or former spouse for economic or non-economic contributions to the financial resources of his or her former spouse.
An example of such alimony is when one spouse temporarily supports the other while the second spouse pursues an advanced degree. Transitional alimony is available for marriages of less than 5 years, to transition the recipient spouse to an adjusted lifestyle or location as a result of the divorce.
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This type of alimony can be used to bridge the gap between being married and a single life, such as when a spouse moves out of state following a divorce. No, courts generally do not scrutinize the exact manner in which a parent spends child support. However, a parent who seeks child support in excess of the Massachusetts Child Support Guidelines may be expected to detail why an order under the Guidelines is insufficient.
The best remedy to avoid the fraudulent concealment of assets by a spouse is to file a divorce complaint and serve your spouse. The order is binding on the Plaintiff upon filing the divorce and binding on the Defendant upon service of process. This means that once the initial divorce papers are served on a spouse, that spouse is prohibited from transferring or hiding assets except for ordinary living expenses and to pay their attorney.
If they want to use assets for another purpose, they will generally need the written consent of the spouse or an order of a Judge. Until you file a complaint for divorce, there are few if any constraints on how your spouse handles marital assets.
How do I file for divorce?
Yes, the complaint for divorce has a specific section which allows you to revert back to your maiden name following the entry of judgment, if you wish to do so. If you would like to resume your maiden name, it is important to do so through your divorce, where a stand alone Petition to Change Name can be a time-consuming process. Unfortunately, an increasing number of employers are no longer providing medical and dental coverage for former spouses beyond an expensive rider to the policy; through COBRA; or through a separately purchased plan through the employer. A failure to consider the cost and availability of post-divorce medical and dental insurance is one of the most common mistakes individuals make during the divorce process.
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It should be note that the presence or absence of former-spouse coverage is generally unrelated to the availability of medical insurance coverage for unemancipated children. A Judge may consider other arguments regarding ownership of an animal: if the pet was a gift to one spouse or was owned by one spouse before marriage, then these factors may be the basis for deciding ownership.
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In the context of family law, failure to obey a court order and pay child support or alimony, allow parenting time, provide health insurance , or other violations are considered contempt of court. A contempt can also occur when a person violates court protocols.