Posts tagged "divorce"

Discovering "Hidden" Assets in a Divorce

It is natural for a couple going through a contentious divorce to lack trust in each other. Accordingly, one of the first questions that a divorcing party will often ask their attorney is how they can be sure that their soon-to-be-ex-spouse has fully and fairly disclosed all of his or her property, and that he or she has not engaged in "divorce planning" - that is, moving or concealing assets that could be considered marital property so that they will not have to be shared with the other spouse upon divorce.

Can a judge order that a retirement account be divided equally between the parties as of the date of their divorce if one party made contributions to that account after the parties separated but before the date of divorce?

This issue was examined by the Appeals Court in the recent case, Hoy v. Hoy. In that case, the wife was the primary wage earner during the parties' long-term marriage and the trial judge in the divorce found that the husband was in need of alimony. However, because the wife's income was substantially reduced by the time of the trial, the judge did not order her to pay alimony. Instead, the judge noted that the issue of alimony could be brought back before the Court and modified at a later date and ordered the wife to provide the husband with notice if her income increased by more than 5%. Additionally. the judge awarded the husband slightly more than half of the marital assets, including half of the wife's retirement accounts accrued over length of the marriage and more than half of the proceeds of the sale of the marital home.

Appeals Court Vacates Custody Award Due to Domestic Abuse Allegations

In the recent unpublished Memorandum and Order Pursuant to Rule 1:28, Manning v. Manning, the Massachusetts Appeals Court overturned a custody judgment from the Probate and Family Court awarding a couple shared legal and physical custody of their two children due to the lower court judge's failure to make required findings of fact regarding the wife's allegations of domestic abuse by the husband. At the time of their divorce trial, the wife testified that her husband had abused her on numerous occasions during the marriage, including punching her, throwing objects at her, and grabbing her by the neck in front of their child. The trial judge credited the wife's testimony, writing in the judgment that the husband "physically battered and assaulted the [w]ife throughout the entire tenure of the marriage." Despite this finding, however, the judge ordered that the parties should have shared custody of their children, with each parent exercising parenting time for one week at a time.

Is a Court Required to Consider Past Abuse in a Child Custody Modification Action?

Recently in Malachi M. v. Quintina Q., the SJC held that: [P]ursuant to G.L. c. 208, § 31A, the judge at a modification proceeding must consider evidence of both past and present abuse, including evidence of domestic abuse that occurred prior to the entry of the divorce judgment, and must address the applicability of the rebuttable presumption, even in the absence of evidence of abuse occurring after the divorce judgment.

New Appeals Court Decision Clarifies Residency Requirement For Filing For Divorce

In Massachusetts, the durational residency requirement for a plaintiff to file for divorce is one year G.L. c. 208, § 5 (meaning, one must be a Massachusetts resident for a year before Massachusetts has jurisdiction over their divorce), but until recently, appellate courts had yet to define the parameters of that one-year residency requirement. Earlier this month, the Massachusetts Appeals Court provided clarification in its decision in Rose v. Rose.

What is dissipation of the marital estate and why does it matter?

One of the most contentious issues arising in divorce proceedings will often be the division of the parties' assets. In Massachusetts, the courts follow an equitable system of division, meaning they seek to divide property "fairly," not necessarily "equally." There are cases in which the marital estate seems to have been reduced by the irresponsible or intentional conduct of one party (party A), which ostensibly has the result of diminishing the eventual share of the marital estate that each party will retain.

When will the court order a party to pay the other's attorney's fees in a family law case?

In civil litigation, which includes cases in the Probate and Family Courts, the American rule generally dictates that each party is responsible for its own attorney's fees and expenses. However, there are some exceptions to this, and in Massachusetts some 'fee-shifting' statutes provide for one party to cover the other's legal costs, particularly in domestic relations or family proceedings.

Can Student Loan Debt be Categorized as a Marital Debt?

In Massachusetts, a judge has broad discretion with respect to the equitable division of the marital estate and may consider both economic and noneconomic contributions to the marital estate. A prenuptial agreement can clarify the responsibility for debts incurred during the marriage, as well as how payments made toward individual, pre-marital debts during a marriage, including student loans, are to be treated in the event of a divorce. Generally speaking, debt incurred during the marriage, including student loan debt, will be presumptively marital. The party challenging that presumption will typically have to present evidence that the debt at issue was intended to be an individual debt. The analysis is entirely dependent on the circumstances of the case and the determining factor will not rest on whether the challenging party's signature is on the underlying promissory note securing the original debt. In a vacuum, student loan debt incurred by one party prior to the marriage will typically be categorized as individual debt, especially in marriages of a shorter duration. However, the issue becomes more complicated where one spouse significantly pays down the other's pre-marital student loan debt. While the Court may certainly look to the intent of the parties at the time of the incurrence of the debt - in highly contested matters - evidence to that effect may be limited to the now at-odds testimony of the parties.

Is a Former Spouse a "Creditor" Under the Massachusetts Uniform Fraudulent Transfer Act?

In Foisie v. Worcester Polytechnic, Institute (September 30, 2019), the United States District Court for the District of Massachusetts allowed a Motion to Dismiss where a former wife brought claims of fraudulent transfer and/or constructive fraudulent transfer against Worcester Polytechnic Institute ("WPI") located in Massachusetts under Connecticut law. The former wife alleged that the assets donated to WPI by her former husband were hidden from her during their divorce, and that the donation was intended to defraud her.

What Happens if the House is Sold During the Divorce?

It is the unfortunate case that, in many divorces, the marital home is sold as part of the divorce proceedings. Sometimes, the decision is made for non-financial issues - the house is tied to too many memories and both parties decide that they are better off starting anew. More often than not, however, the financial circumstances are such that the house is simply unaffordable. Perhaps the party who wants to stay will no longer be able to afford the carrying costs; an unfortunate corollary of most divorces is that oftentimes one income or even two are insufficient to maintain two different households. Whatever the reason, often by agreement and sometimes by court order, the marital home is just ordered to be sold either during or after the divorce.

Taking the Fifth: No Longer an Option When it Comes to Adultery in Massachusetts

Pursuant to 2018 Session Laws Chapter 155, Section 2 (An Act Relative to Reproductive Health), Massachusetts's outdated law criminalizing adultery was repealed. The Governor approved the law on July 27, 2018.

Business Valuation in Divorce Cases

Business valuation arises in divorce cases where one or both spouses have an ownership interest in a closely held corporation - that is, a corporation which has a limited number of shareholders. This ownership interest is usually considered a marital asset, just like real property or a bank account, and is thus subject to equitable division in a divorce. Valuing a spouse's interest in this type of business can be a complex process due to the fact that there is no market on which a spouse could readily liquidate his or her shares. Accordingly, in many cases, the divorcing parties will retain a business valuator to determine the value of the spouse's ownership interest in the company.

Alimony based on "bonus income" is not available when income is determined to be payment for stock options

In a recent summary decision, a panel of the Massachusetts Appeals Court considered whether or not certain payments that a former husband received in addition to his base salary constituted "bonus income," of which husband would then be obligated to pay his former wife a percentage as alimony.  (See Dunbar v. Dunbar, 2019 WL 993330) (Pursuant to Rule 1:28).  

Business Valuation in Divorce Cases

Business valuation arises in divorce cases where one or both spouses have an ownership interest in a closely held corporation - that is, a corporation which has a limited number of shareholders. This ownership interest is usually considered a marital asset, just like real property or a bank account, and is thus subject to equitable division in a divorce. Valuing a spouse's interest in this type of business can be a complex process due to the fact that there is no market on which a spouse could readily liquidate his or her shares. Accordingly, in many cases, the divorcing parties will retain a business valuator to determine the value of the spouse's ownership interest in the company.

Tax Reform Bill Eliminates the Alimony Deduction

The new tax reform bill (https://www.congress.gov/bill/115th-congress/house-bill/1), which was signed into law on December 22, 2017, eliminates (http://money.cnn.com/2017/12/15/pf/taxes/alimony-tax-bill/index.html) the tax deduction for alimony payments for separation agreements and divorces obtained after December 31, 2018.

The Positive-Selfish-Side of Effective Co-Parenting

In contested custody cases where a child rejects contact with a parent, the rejected parent often accuses the aligned parent of engaging in alienating behaviors that are intended to sever the attachment between the child and the rejected parent.

50/50 Parenting: Quantity versus Quality

I recently came across Edward Kruk, PhD's article in Psychology Today entitled "Equal Parenting and the Quality of Parent-Child Attachments." The article summarizes research on parenting plans that I have found useful in support of some clients' requests for equal parenting time (R. Bauserman, "A meta-analysis of parental satisfaction, adjustment and conflict in joint custody and sole custody following divorce," Journal of Divorce and Remarriage [2012]; W.V. Fabricius, "Parenting time, parent conflict, parent-child relationships, and children's physical health," Parenting Plan Evaluations: Applied Research for the Family Court [2011]).

Massachusetts Prenuptial Agreement Signed One Day Prior to Wedding Upheld: Size and Formality of Wedding and Prior Divorce Matters

The Massachusetts Appeals Court has issued a Rule 1:28 Memorandum and Order in a divorce case entitled Roof v. Abelowitz upholding the validity and enforceability of a prenuptial agreement that the wife signed only one day prior to the wedding. The court considered two particularly interesting factors in finding that the wife's waiver of rights under the prenuptial agreement was valid. In this case, the size and formality of the wedding and the prior married and divorced status of the wife carried weight.

Lesson in Co-parenting from the Presidential Debate

A final question to the candidates during a recent presidential debate reminded me of a topic that often comes up in the context of co-parenting work in high-conflict cases, interviews by custody evaluators, questioning at depositions in custody disputes, documents submitted to a judge, and oral arguments at custody hearings or trials.

Mandatory Self-Disclosures in Family Court: What Do the Finances Look Like?

In any divorce, the division of assets and support calculation (if any) will be one of the main, if not the main, focal points of the divorce process. In order to accomplish this task, both parties and their counsel should have a thorough understanding of the parties' financial circumstances - income, expenses, assets, and liabilities, among other things. Such concerns are often the target of discovery - parties are entitled to receive relevant information from the other side in order to make an informed decision. Such processes can sometimes be time-consuming and expensive, particularly in cases involving more complex financial arrangements.

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