Posts tagged "divorce"

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.

Enforcing A Child Support Order: Help from the Massachusetts Department of Revenue

Recognizing a child's need/right to receive financial support from both parents - even when those parents are apart - the DOR employs various methods to assist families in enforcing court-ordered child support obligations.

Appeals Court Articulates Standard For Barring Contact Between Children And Third Parties In Divorce Cases

The Massachusetts Appeals Court recently issued a decision in a divorce case called Jankovich v. Jankovich. It was a Rule 1:28 decision, which is primarily directed to the parties and, therefore, may not fully address the facts of the case or the appellate panel's decisional rationale. Rule 1:28 decisions are not circulated to the entire Appeals Court, and, therefore, represent only the views of the panel that decided the case. Also, such a decision may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Still, this particular case addresses the issue of children's access to third parties, which we as family lawyers often encounter in contested divorce cases.

"Divorce Selfie" Explosion Bucks Trend of Damaging Use of Social Media in Family Law Cases

With the explosion of social media over the last decade, evidence from Facebook, Twitter, MySpace, and Instagram is now routinely used in divorce cases, shedding light upon critical factors such as a party's spending habits, irresponsible behavior, or failure to make a good faith effort to find a job. More often than not, an avid social media presence is considered a risk to a divorcing litigant, as anything a party posts online can usually be retrieved and used against him or her in a potentially damaging manner. As a result, divorce attorneys typically advise their clients to refrain from social media altogether during a contested family law proceeding.

Financial Stress and Divorce

Financial stress is often cited as a leading cause of divorce. Financial stress can have an extreme impact on a relationship. It can eventually wear away at the love and affection that one has for another because of how consuming the issue can be in someone's life - exhausting someone emotionally and depleting their personal resources to continue to work hard at being in a healthy committed relationship. Of course, financial stress is usually not the only cause for the breakdown in a marital relationship, but it can have an impact on more aspects of a couple's life than just their finances.

"A House Divided": Determining the Disposition of the Martial Home Upon Divorce

Abraham Lincoln has famously stated that "a house divided against itself cannot stand"; and the disposition of the marital home is often one of the most contentious issues in a divorce case. In many cases, the marital home represents the couple's most significant asset (other than retirement assets) and deciding how to distribute the property can be thorny, particularly as the mortgage lender will continue to consider both parties jointly obligated until the property is either sold or refinanced.

Court Deviates From Durational Limit With Extension Of Alimony Paid To A Disabled Spouse

Since the enactment of the Alimony Reform Act of 2011 (the "Act"), alimony awards once considered ambiguous or lifetime entitlements are now subject to specific, durational time limits based upon the length of the parties' marriage. But, under what circumstances might such durational limits be extended? In a recent decision, a Probate and Family Court (Hampshire Division) judge has ruled that a former husband's obligation to pay alimony to his disabled former wife shall continue beyond durational limits. Barcalow v. Barcalow (Lawyers Weekly No. 15-003-12.) In the Barcalow case, the parties were married for approximately 6 years, 2 months (or 74 months). By the terms of the Act, if the duration of the marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 percent of the number of months of the marriage. G.L. c. 208, § 49(b). Following passage of the Act and more than 7-years post divorce, Mr. Barcalow filed a Complaint for Modification, seeking to terminate his alimony obligation to his former wife based, in part, upon the fact that his obligation exceeded the Act's durational limit.

Mine, Yours or Ours? Ownership of Property During the Marriage and Upon Death or Divorce

Many married couples give little thought to the issue of which party "legally owns" property acquired during the marriage or the impact that legal ownership may have upon the distribution of assets in the event the marriage ends by death or divorce. Some couples assume, albeit incorrectly, that all property is "marital" in the sense that everything owned by either party will pass to the surviving spouse in the event of death. Other couples assume, also incorrectly, that owning property in one's individual name (rather than jointly) will protect the asset from the other in the event of divorce. While neither assumption is correct, the irony of the current state of Massachusetts law is that parties are afforded far greater rights in the property and estate of the other if their marriage ends in divorce than they are if their marriage ends in death.

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