With the national divorce rate close to 50%, many spouses have questions about divorce and the legal process of divorce. Divorce laws from state to state. Here is a summary of Massachusetts divorce law and frequently asked questions about this topic.
Q: Is there a legal separation in Massachusetts?
A: There is no formal “legal separation” of a couple in Massachusetts. However, if a married couple is now living apart, either spouse may file a Complaint for Separate Support. In the complaint, the Plaintiff must allege one of the following: 1) the Defendant is not providing suitable support, without justifiable cause; 2) the Plaintiff has been deserted by the defendant; 3) the Plaintiff is actually living apart from the Defendant for justifiable cause; or 4) the Plaintiff has justifiable cause for living apart from the Defendant.
In the action, the spouse may seek the following relief: 1) establish that such living apart from the Defendant is for justifiable cause; 2) prohibit Defendant from imposing any restraint on Plaintiff’s personal liberty; 3) grant custody of the minor and unemancipated children; 4) order suitable amount of support for the Plaintiff and/or minor children with suitable provision for health insurance; 5) order conveyance of real estate owned by the parties.
Thus, although there is no formal “legal separation” in Massachusetts, a Complaint for Separate Support allows spouses to live separate and apart, and can permit a court to issue orders regarding child custody, child support, alimony, and property division. This, in essence, accomplishes all that a divorce accomplishes, except the parties remain married.
Spouses can also consider executing a Postnuptial Agreement. A Postnuptial Agreement is similar to a Prenuptial Agreement, but is executed after the couple is already married. The Postnuptial Agreement outlines the rights and responsibilities of each spouse in the event of a separation or divorce.
Q: How do I start the divorce process?
A: Massachusetts has two different methods of divorce: 1) uncontested divorce; and 2) contested divorce.
If both spouses agree to get a divorce, and also agree to the terms of a divorce, then they can file a Joint Petition for Divorce pursuant to M.G.L. c. 208 §1A, along with a Separation Agreement, which outlines the terms of the divorce settlement, and also a Financial Statement for each spouse, and an Affidavit of Irretrievable Breakdown, outlining that the marriage is irretrievably broken and there is no chance at reconciliation.
If only one spouse either agrees to the divorce, or the parties disagree to the terms of the divorce, then one spouse may file for a contested divorce by filing a Complaint for Divorce. There are many grounds upon which a spouse may file for a contested divorce, but the most popular is the no-fault grounds of Irretrievable Breakdown of the Marriage. With no-fault grounds, the spouse does not have to prove any grounds for fault to obtain a divorce. However, with the other fault-based grounds of divorce, the spouse must affirmatively prove the grounds of divorce alleged to obtain a divorce. These fault-based grounds include: 1) Adultery; 2) Cruel and Abusive Treatment; 3) Gross and Confirmed Habits of Intoxication; 4) Gross or Wanton and Cruel Refusal or Neglect to Provide Suitable Support; 5) Impotency; 6) Sentence or Confinement to Prison; and 7) Utter Desertion.
Q: Where should I file for divorce?
A: The Probate and Family Court is the court in Massachusetts that hears all divorce cases. A spouse should file for divorce with the Probate and Family Court in the county where he/she is currently residing, unless one of the spouses still resides in the county where the parties last lived together as husband and wife. In that case, the divorce must be filed with the Probate and Family Court in the county where the spouses last lived together.
Q: How long does a divorce take?
A: It depends on the type of divorce filed.
In a Joint Petition for Divorce, the parties both agree to divorce one another, and come to a full, fair, and reasonable settlement memorialized by a Separation Agreement prior to filing for divorce. This can be done by the parties’ respective attorneys brokering the deal, or through mediation. The negotiation of this settlement oftentimes can take only a few weeks. Once the settlement is memorialized into a Separation Agreement, the necessary court documents are prepared to file a Joint Petition for Divorce, the Court assigns a date for the divorce hearing. Depending on the case load of the specific court, this can be in a matter of days, or a matter of months. However, typically a Joint Petition for Divorce is resolved anywhere between 1-4 months.
A Complaint for Divorce is given a track assignment of 14 months by the court. A track assignment is a time standard established by the court, whereby the court estimates how long a case will take to come to full resolution, either by settlement or by trial. This track assignment however, is not concrete; a contested divorce can be resolved in less than 14 months, or more than 14 months. This largely depends on how cooperative the parties are and how willing they are to work together to come to a fair and reasonable settlement. This also depends on how extensive discovery is during the pendency of the divorce. If the parties are willing to work together and come to a fair and reasonable settlement, the divorce can be resolved in a matter of months, typically 6-8 months, or even less in certain cases.
However, if the parties do not get along and it is a highly contentious case, it can take longer than 14 months. In the event that a case goes to trial, it is very possible that a divorce can take even longer than 14 months, and even up to 2-3 years. This is partially due to the fact that the Probate and Family Court in Massachusetts is severely short-staffed and backlogged, which means many judges do not have any availability on their docket for a trial for at least 3-6 months out, once the parties are ready to schedule a trial.
Thus, the amount of time it takes to get divorced all depends on how much the parties are willing to work together.
Q: How much does a divorce cost?
A: The total cost of a divorce case will largely depend on how much the parties are willing to work together to come to a fair and reasonable resolution. Approximately 95% of divorces settle without the need for trial in Massachusetts.
In Massachusetts, spouses can file a Joint Petition for Divorce, which is also known as an uncontested divorce. In this type of case, the parties both agree to divorce one another, and come to a full, fair, and reasonable settlement memorialized by a Separation Agreement prior to filing for divorce. This can be done by the parties’ respective attorneys brokering the deal, or through mediation. Where the parties’ attorneys broker a settlement, the costs are likely to be only a few thousand dollars, or less. In cases where the parties agree to mediate, many mediators in Massachusetts will mediate the divorce case and prepare the divorce filing for a flat fee.
In contested divorces, the cost of a case will depend on how well the parties get along, and how much discovery is conducted prior to settlement, if the case settles. If the case settles, and discovery is not too extensive, the cost of the divorce is likely to be only a few thousand dollars. However, as the case becomes more contested, and more discovery is conducted, the costs of the divorce will increase, and could, potentially, enter the tens of thousands of dollars prior to settlement.
The 5% of cases that actually end up going to trial, tend to cost much more, due to the cost of protracted litigation, and the extensive preparation necessary for a party’s attorney to be prepared for trial, as well as the cost of attending the trial. In these cases, the cost of a divorce can easily be in the tens of thousands of dollars.
In addition to legal fees paid to an attorney and/or mediator, there is also the required filing fee with the Court. The filing fee for an uncontested divorce is $215.00. The filing fee for a contested divorce is $220.00. There also additional fees that can be incurred, such as fees for a constable or sheriff to serve papers.
Q: What is an automatic financial restraining order?
A: Massachusetts has a prohibition on depleting, transferring, or encumbering marital assets during a divorce pursuant to Supplemental Probate and Family Court Rule 411. More specifically, the Rule states:
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney's fees and costs in connection with the action; (e) written agreement of both parties; or (f) by order of the court.
(2) Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards.
(3) Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by order of the court.
(4) Neither party shall directly or indirectly cause the other party or the minor child(ren) to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.
This rule immediately applies to the Plaintiff upon filing the Complaint for Divorce. The rule applies to the Defendant when he/she is served with the Summons and Complaint.
Q: Do I have to disclose my assets and financial situation?
A: Yes, pursuant to Supplemental Probate and Family Court Rule 401, both spouses must complete and exchange a court approved Financial Statement form, which discloses their income, weekly expenses, assets, and liabilities. If a spouse makes $75,000.00 or more in a year, then he/she must complete a Long Form Financial Statement. If a spouse makes less than $75,000.00 in a year, then he/she must complete a Short Form Financial Statement.
Q: Should I hide my assets?
A: Absolutely not!
Within forty-five (45) days from the date the Defendant is served the Summons and Complaint for divorce, Supplemental Probate Court Rule 410 requires that both parties exchange the following financial documents:
1. The parties federal and state income tax returns and schedule for the past three (3) years.
2. Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party.
3. The four (4) most recent pay stubs from each employer from whom the party worked.
4. Documentation regarding the cost and nature of available health insurance coverage.
5. Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties minor children, 401(k) statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.
6. Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce.
7. Copies of any financial statements and/or statements of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.
This disclosure is accompanied by a Statement of Compliance with Supplemental Probate Court Rule 410. This Statement of Compliance is signed under the pains and penalties of perjury, which means if any assets are not disclosed, and they are required to be disclosed under Supplemental Probate Court Rule 410, then that party can be subject to criminal sanctions for committing perjury.
Finally, after a divorce is finalized, if a spouse finds that another spouse hid assets during the pendency of the divorce action, the Court has the authority to reopen the divorce action and reapportion assets between the spouses, based upon the newly found assets. This typically does not end well for the party who has hidden the assets. Typically, the spouse that discovers the previously hidden assets will be awarded a greater proportion of marital assets when the divorce action is re-opened.
Q: Can I get an Order from the Court while my case is pending?
A: Yes. In most contested divorces, at least one spouse files a Motion for Temporary Orders requesting the court to issue an Order addressing different issues that have arisen in the divorce. A Temporary Order can address many things, which include:
· Child Custody and Visitation
· Child Support
· Which spouse will maintain health insurance for the other spouse and the children
· Which spouse will have exclusive use and occupancy of the marital home
· How the parties will file taxes for the prior or current year
· Which party will claim tax dependency exemptions while the divorce is pending.
As a divorce progresses through the court, a Temporary Order can be modified if the parties’ circumstances change during that time.
Q: How is property divided in a divorce?
A: Massachusetts is an equitable distribution state. That means that under Massachusetts laws, the Court has the authority to assign property owned by either spouse, regardless of how or when acquired. The factors that are considered in dividing property are outlined in M.G.L. C. 208 §34, and include:
1. Length of marriage.
2. Conduct of the respective parties during the marriage.
3. Ages of the respective parties.
4. Health of the respective parties.
5. Station of the respective parties.
6. Occupations of the respective parties.
7. Amount and sources of income of the respective parties.
8. Vocational skills of the respective parties.
9. Employability of the respective parties.
10. Estates of the respective parties.
11. Liabilities of the respective parties.
12. Needs of the respective parties.
13. Current needs of the minor children of the marriage.
14. Future needs of the minor children of the marriage.
15. Opportunities available to the respective parties for future acquisition of capital.
16. Opportunities available to the respective parties for future acquisition of income.
17. Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.
18. Contributions of Husband and Wife as homemaker.
In theory, under the law, any and all property each spouse owns is subject to equitable distribution in Massachusetts. However, in general, property acquired prior to the marriage may be retained by the spouse who owned it prior to the marriage. Also, property acquired by a spouse after filing for divorce may be considered separate property. However, the other spouse’s attorney can always make an argument that this property is still subject to division if both spouses contributed to the maintenance and appreciation of that asset.
Equitable distribution in Massachusetts is highly case-specific. A party to a divorce should consult with a family law attorney before making any decisions about property division or equitable distribution.
Q: How is child support calculated?
A: Child support is calculated based upon the Massachusetts Child Support Guidelines. The Child Support Guidelines often compare the respective financial circumstances of each parent and also look at the standard of living the children enjoyed while the parents were still married. Based upon the Guidelines, both parents gross income is calculated to determine the noncustodial parent’s child support obligation. Gross income can include many types of income, including:
1) (a) salaries, wages, overtime and tips, (b) income from self-employment;
3) severance pay;
6) interest and dividends;
7) income derived from businesses/partnerships;
8) social security excluding any benefit due to a child’s own disability;
9) veterans’ benefits;
10) military pay, allowances and allotments;
11) insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses;
12) workers’ compensation;
13) unemployment compensation;
16) distributions and income from trusts;
17) capital gains in real and personal property transactions to the extent that they represent a regular source of income;
18) spousal support received from a person not a party to this order;
19) contractual agreements;
20) perquisites or in-kind compensation to the extent that they represent a regular source of income;
21) unearned income of children, in the Court’s discretion;
22) income from life insurance or endowment contracts;
23) income from interest in an estate, either directly or through a trust;
A parent’s child support obligation is calculated by adding the combined gross incomes of the recipient parent and the payor parent, less any child care, health insurance, dental and vision insurance, and other child support obligations already paid. This combined gross income is then multiplied by a factor based upon the number of children in the family. The product of the parents’ gross income multiplied by the pre-determined factor based upon the number of children in the family is the combined child support obligation of the parents. Each parent’s child support obligation is then factored on a pro-rata share based upon their gross incomes.
Even in cases where a payor parent has no income, they can be ordered to pay a state-mandated minimum order of $80.00 per month (or $18.46 per week). In cases where the parents’ combined income exceeds $250,000.00, the court is not obligated to order a child support obligation above the first $250,000.00, but has the discretion to do so.
The Child Support Guidelines are drafted on the presumption that children split their time between parents on approximately a 1/3 and 2/3 basis. In cases where the parenting time is different, the Guidelines can be adjusted to reflect the actual parenting plan.
Q: How is custody determined?
A: In Massachusetts, along with most other states, there are two types of child custody: 1) legal custody; 2) physical custody.
When a parent has legal custody of a child, then the parent has the right to make important and major decisions in the child’s life. This includes where the child will go to school, decisions about the child’s health and welfare, what religion(s) the child will be raised in, as well as other significant decisions affecting the child. Typically, but not always, both parents share legal custody, which then is known as joint legal custody.
Physical custody relates to who the child physically resides with. If a child resides with one parent more than the other parent, then the parent who has the child more of the time has primary physical custody. If parents equally share time with the child, then there is no primary physical custodian, but rather joint or shared physical custody.
In Massachusetts, the legal standard for developing a custody arrangement is the “best interests” of the child. Through the legal standard, the courts analyze how a child’s living arrangements and upbringing affect their physical, mental, and emotional well-being, and based upon that, what is best for the child. Oftentimes, the determination is very case and fact-specific, and there is not one “clear cut” answer to any case. In making this determination, there is no presumption that one parent is the “better” parent in awarding custody. That means that there is NOT a presumption that the wife/mother will automatically get custody of the children. Absent a showing that a parent is unfit, both parents will be equally considered for custody of the children.
"The money you'd put away to fund retirement together now has to cover two separate retirements," says New York City financial planner Dawn Brown. "This will be more expensive because it requires running two households."
Meanwhile, for many of the newly single, living costs rise relative to income, while discretionary spending remains the same -- leaving less room for the savings needed to catch up.
These steps can help you get to stable financial ground.
THE TURNING-POINT CHECKLIST
Well before the divorce
Know the score. Gather investment and bank statements, going back at least a year. Copy tax returns for income history. Pull your credit report to know what debts you have.
Consult a lawyer. In case you require counsel later and to learn about state laws. In nine "community property" states, assets acquired during marriage are owned fifty-fifty. In the rest, the court decides the split if it goes to litigation.
Open accounts in your name. Start stockpiling a cash stash for emergencies and legal fees. Apply for a credit card, too, while household income is higher.
Once the process is under way
Get the right help. Working out a settlement with a mediator may save money. But if your finances are complex or your relations contentious, an attorney can help you avoid mistakes or costly concessions.
Be strategic in getting your share. You may love the house, but if you give up investments of equal value, you lose the benefits of a balanced portfolio. You're often better off selling the house. In divvying up retirement funds, specify percentages vs. amounts, in case the market soars or tanks.
Related: How to tell your kid you can't afford her dream college
Take care of the kids. Be sure to specify in the settlement how you'll handle big costs, like braces, summer camp, and college. If you'll receive child support or alimony, insist that the provider get life insurance to ensure payments.After the split is official
Stay insured. If you were on your spouse's health plan, the next cheapest option is likely your employer's offering. But if your ex's job has 20-plus employees, you can also continue coverage via COBRA -- so long as you notify the plan administrator within 60 days of the divorce. Or you can sign up through the Health Insurance Marketplace within 60 days.
Related: Baby on the way? Time to make a budget
Review your taxes. Usually only the custodial parent can claim kids as dependents. Give or get alimony? It's deductible to the payer, and taxable to the payee.
Make a new financial plan. Base it on your new income and household costs. You may have to up your retirement savings, both to rebuild what you gave up and to cover continued higher living costs in retirement. Use the T. Rowe Price Retirement Income Planner to revise your savings goal.
Restate your estate. Draft a new will to prevent your ex from inheriting, and name new beneficiaries on retirement accounts, pensions, and life insurance.
Sources: Family-law attorneys Jennifer Brandt of Philadelphia, Kelly Chang Rickert of Los Angeles, and Mark Chinn of Jackson, Miss.; Cheryl Jamison of the Association for Conflict Resolution; Mediate.com; divorce financial adviser Jeff Landers of New York City
Divorce is undeniably a tumultuous experience for any couple, regardless of how amicable the dissolution may be. It is very easy to get caught up in our own roller coaster of emotions, as well as with the challenges of navigating the divorce process itself. It is important to remember there are innocent bystanders sitting on the sidelines, watching and listening. Regardless of age, careful attention must be paid to the children of divorce, minimizing the fallout as they interpret it. Here are a few words of advice to offer children that may help guide them through this difficult period and ease their adjustment.
1. It is not your fault. Whether a child is three or 30, it is a natural response to look for reasons why parents divorce. As children search for answers, one place they may look is inward. How children perceive a situation is altogether unpredictable, and may be based on something as seemingly insignificant as a passing glance or an off-the-cuff comment. During my separation, my then six year-old, overhearing an argument between my ex husband and myself about when things first became bad in our marriage, associated that same time with his own birth. Of course, our issues had nothing to do with him, and I still remind him of that often.
2. There is no wrong way to feel. When adults go through a divorce, emotions run the gamut. The same holds true for children. Children of all ages need to know that on some days they may feel sad, angry, hurt, or even happy about the change in their family’s situation. All of these feelings are natural, and may fluctuate throughout the day and over time.
3. There is outside support if you need or want it. As a caveat to the above, if children’s perceptions about divorce become irrational to the point of being self-destructive, it is advisable to seek help from a qualified mental health professional. Even if a child’s response is not threatening, turning to an outside party such as a therapist, support group, clergyman, trusted relative, or family friend for added support can be beneficial. Help is out there. It is only a matter of asking for it.
4. Both of your parents love you. It is extremely important to reassure children that divorce is a relational matter between two parents, and not between parents and their children. Yes, living arrangements will likely change, but the love between a parent and a child is not affected by geography.
5. Parents show love in different ways. Children often question how much each of their parents love them in the wake of a divorce. In doing so, they tend to quantify, measuring the actions of one parent against those of the other. A wide range of situations may dictate that one parent spends more time with children than the other parent, spends more money, or engages in more enjoyable activities together. Reminding children that none of these scenarios indicate how much love a parent has for a child, and may be merely logistical and unavoidable consequences of divorce, is critical.
6. Your parents’ divorce does not define you. Children need to remember that just because their parents are divorcing, they are still the same person they were before. Hopes, dreams, and goals remain the same, and their parents’ divorce is no reflection on them.
7. Your relationship with each of your parents is independent of the other. It is important for children to maintain a separate and private relationship with each parent. As tempting as it may be to play the game of he said, she said with your children, kids must feel safe and secure in their relationships with each parent in order to have consistently healthy interactions on both sides. I stopped prying long ago. If my children have something to discuss with me, they will.
8. It is not your responsibility to fix your parents’ marriage. The factors leading up to a couple’s divorce likely existed for a long time before coming to a head. Marriage is a private affair between two individuals, individuals who were once closest in the world to one another. Children are not privy, nor should they be, to what goes on between a husband and wife.
9. Marriage can be wonderful. For many years, I loved being married. Children should understand that just because their parents’ marriage may not have worked out in the end, it doesn’t mean all marriages fail. Marriage is a sacred union between two people who love and respect one another, and they will know the time, if and when, it will be right for them. Of course, there are no guarantees for a successful marriage. But no two situations are ever the same, and history does not have to repeat itself.
10. Life goes on. Children will survive divorce, as will their parents. Change is difficult, but also inevitable. Divorce can ultimately be a positive experience for everyone involved, affording a second chance at a new and better life. As parents, we would never hope for or accept anything less.
APPOINTING AN EXECUTOR
You should appoint an executor in your will. An executor locates heirs, lists property, pays debts, and distributes property to your heirs. A relative or friend can serve as your executor, but you should consider using a professional executor (such as a bank or trust company) if you have a large or complicated estate. An executor should be someone who is familiar with managing property, financial matters, and record-keeping. Before naming an executor, confirm that the person is willing to serve. Your lawyers can help you select the best executor. As noted above, your will can state that the executor is not required to furnish a bond, thus saving your estate this expense.
APPOINTING A GUARDIAN
If you have children under 18, you should appoint a guardian in your will. Otherwise, if you and your spouse die at the same time without such an appointment, a court will select a guardian to care for your children and manage their inheritance until they become adults. You can create a trust to control the property transferred to your children. A trust is useful if you are concerned that the children may lack the maturity to handle their inheritance after age 18. Your lawyer can help you to select a guardian and create a trust in your will that protects your children and your wishes.
KEEPING YOUR WILL IN A SAFE PLACE
Your will should be kept in a safe place so that it can be promptly located when you die. You may wish to have your lawyer keep the original to protect it from damage or loss. Although you are not required to give your executor a copy of the will, you should tell both your executor and a trusted family member where your will is stored.
In addition to ordinary wills that state your wishes for your property when you die, the laws of some states permit “living wills” that instruct your doctors to withhold life support equipment while you are alive. A living will is important if you become comatose with no hope of regaining consciousness. Your “living wills” should be written in a document separate from your ordinary will and you should re-sign and re-date it every few years to comply with your state law and to reaffirm your preferences. Give a copy of your “living will” to your doctors and to a close family member. Your lawyer can help you write a “living will” and advise you about re-signing it every few years to keep it valid.
MAKING YOUR FUNERAL ARRANGEMENTS
You can include instructions for your funeral arrangements in your will. However, you may wish to put these instructions in a separate letter. Give a copy of the instructions to your executor or a family member or friend to avoid delays when you die. You can also include instructions about gifts of your body organs to hospitals for research or transplants. Such instructions for gifts of body organs can be noted on your driver’s license or a separate donor card that you can carry in your wallet.
REDUCING THE TAXES ON YOUR ESTATE
Federal estate taxes and state inheritance taxes may be deducted from your property before it is transferred to your heirs. A federal estate tax applies if the value of your property exceeds an exempt amount that varies depending on the year of your death. Following is a table of the exempt amount:
Year of Death Exempt Amount
2002-2003 $1.0 million
2004-2005 $1.5 million
2006-2008 $2.0 million
2009 $3.5 million
2010 No estate Tax
2011 and after, $1 million, unless Congress extends the repeal of estate taxes.
A special $1.3 million exclusion applies to estates that hold investments in family businesses and farms. Your lawyer can help you prepare an estate plan that will reduce federal and state taxes. For example, your lawyer may suggest that you make gifts before you die to reduce taxes, hold property in joint tenancy with your spouse, transfer ownership of life insurance policies to your spouse or heirs, or use a trust arrangement. Your lawyer can also help you shift the tax responsibility among heirs if you would like some of them to receive their shares without being taxed on it.
REDUCING PROBATE COSTS
Probate costs include court fees, bond premiums and the fees of professionals who assist your executor with the administration of your estate. Your lawyer can help you reduce probate costs with estate planning tools like joint ownership, living trusts, lifetime gifts, and business recapitalizations. For example, your lawyer can prepare a living trust in which you appoint a trustee to distribute your property when you die. Some estate planning tools can help you reduce probate costs, but they may not lower your estate taxes.
PREPARING YOUR WILL WITH A LAWYER
Your lawyer can help you draft your will and explain the tax consequences. Your lawyer can also help you comply with the detailed requirements for a valid will, see that your property is distributed as you wish, and reduce estate taxes and probate costs. The legal fees are usually well spent and often less than the added costs and taxes that would result from dying without a will.
You should have a will if you own any property-a home, a car, bank accounts, stocks and bonds, retirement benefits, jewelry, clothing, household goods, and so on. A will lets you distribute your property as you want with a minimum of costs and taxes. It is an opportunity to select an executor for your estate, a guardian for your children, establish trusts and dispense with costly bonds. If you don’t have a will, ask your lawyer about drafting one without delay.
CHECK LIST FOR WILLS
(1) ESTATE PLANNING TOOLS
B. Joint tenancy
C. Living trusts
D. Lifetime gifts
E. Business recapitalization
(2) SELECTING YOUR HEIRS
D. Other relatives
F. Charitable organizations
(3) IDENTIFYING YOUR DEBTS AND LIABILITIES
A. Credit cards
C. Home mortgages
(4) LISTING YOUR PROPERTY AND THE HEIRS TO RECEIVE IT
A. Automobiles and boats
B. Bank accounts
C. Computers and electronic equipment
D. Home and household goods
G. Rental property
H. Stocks and bonds
(5) APPOINTING AN EXECUTOR FOR YOUR ESTATE
(6) NAMING A GUARDIAN FOR YOUR CHILDREN
(7) CREATING TRUSTS FOR ALL OR A PART OF YOUR PROPERTY
(8) ALLOCATING TAXES AMONG YOUR HEIRS
(9) PROVIDING FOR FORCED HEIRS
(10) DISINHERITING UNWANTED HEIRS
(11) COORDINATING WITH THE WILL OF YOUR SPOUSE
(12) DIRECTIVE TO DOCTORS TO WITHHOLD LIFE SUPPORT (“LIVING WILL”)
For additional information contact us today at 1(800)290-1012 or at email@example.com visit our new website, www.amarallaw.com.
What should you do if you are in the middle of a divorce but feel at the end of your rope? When you simply can't take another day of nasty texts with your spouse or another day in mediation, it may seem like there is no end in sight. As a divorce financial adviser, I've seen the strongest people crumble and succumb to less than favorable terms because they just wanted the pain and the fighting to stop.
Anyone who has gone through a divorce will tell you it can be one of the most challenging times in their lives and each day is a struggle. As a result, it's only natural to want to expedite a resolution as quickly as possible. Most clients want to move on with their lives and experience peace and happiness again. But what happens when giving up means giving in? Will you feel immediate relief? Absolutely, but the problem is that the negative consequences of your choice to settle are not immediate -- only in the months or years after the divorce will the true impact of settling for too little be felt. And, of course, by then it is too late to re-negotiate.
So how can you prevent this? How can you continue to hold your head high and go for what you deserve when you just want to bury your head in a pillow and make it all go away? There are no easy solutions, but here are a few ideas that others have found to keep them from giving up:
1. Expect a marathon. Go into the divorce hoping it is resolved amicably and quickly, but do not expect it. Sandy Voit, a financial counselor for couples in divorce, prepares his clients for mediation. Sandy explains, "I tell my clients that mediation sessions are usually very stressful and that stamina is important, as many women are already emotionally spent and the hours of mediation wears away at their resolve. I encourage wearing comfortable clothing (think sweats - the mediator doesn't really care what they wear) and to bring comfort food."
2. Stay healthy. A divorce will wear on you emotionally and physically. If you are tired, undernourished, and just worn out, it will be difficult to remain intellectually and emotionally strong. Keep the basics in mind -- get at least eight hours of sleep, minimize excessive drinking, try to get at least 20 minutes of exercise each day, and eat healthfully.
3. Play "what if?" What's the difference between settling for $800,000 and $1.2 million? When emotions are high, our analytical brain shuts down, making it nearly impossible to fully appreciate the impact of two different settlement agreements. Work with a divorce financial planner to help you see in black and white what your finances and life will look like under different scenarios. Donna Cheswick, a certified divorce financial analyst, tells clients, "There are no 'do-overs' in a divorce so thinking financially versus emotionally is critical."
4. Don't lose yourself. All too often "The Divorce" takes over client's lives. Seemingly every thought, phone call, and text revolves around the divorce. This can be incredibly suffocating. Instead, revisit those things that used to give you pleasure. Maybe it was a weekly hike, enjoying a morning coffee at your local park, or your weekly get together with friends. Whatever it was that gave you joy and fulfillment, add it back to your schedule. The more you can create balance in your life, the more likely you will remain strong and focused, doing what it takes to reach a fair settlement.
5. Sleep on it. If you feel you are at the point of breaking down and accepting a settlement you know is not equitable or financially tenable, sleep on the decision. Don't make it in the heat of the moment. Give yourself time to reflect.
6. Listen to your advisors. Tell your team how you are feeling and that you are close to throwing in the towel. They know the specifics of your case and can guide you best. They may be able to spare you from the day-to-day details -- giving you more breathing room. Orange County, Calif. family law attorney Kerri Strunk recommends, "Sometimes it is worth it for a client to take slightly less than what the community property laws provide in order to finish the litigation. However, you must look at the cost versus benefit of litigation. My mantra is if you decide a year after your divorce is final that you want to give your ex the additional benefit they are requesting, beyond what they are entitled to, then you can do so at that time. However, my bet is that they will not be so likely to do so once they are no longer under the stress of litigation."
7. Focus on the future. The most common complaint I've heard from divorcees is the loss of hope that tomorrow will be better than today. All too often the fear is that the future will be just as contentious as yesterday. They cannot see a resolution. Lani Baron, attorney and divorce mediator, suggests: "When dealing with a client who wants to abandon settlement, I always remind them to keep the big picture in mind. I also remind them that the pain they feel is temporary, but the decisions they make now will have long term, lasting consequences."
8. Get support. Make an effort to spend extra time with supportive friends. They can be your source of encouragement and grounding. If you find yourself doing nothing but talking/complaining about the divorce or your soon-to-be ex, set limits. If you're having dinner with friends, agree to only discuss the divorce for five minutes and then stop. If you need more support, talk to a therapist. If you can't afford one, most cities have non-profit organizations that provide counseling services at reduced fees based on what you can afford.
The temporary relief you might see from settling prematurely can come back to haunt you. Laurel Brauer, a family law attorney, suggests "The sense of relief and closure is erased once the dust settles - when they get their bearings back and life begins to heal. Then, they regret. And, this is commonplace. So, I ask clients to look long-term: where will they be in one year, two, five or 10 years?"
Looking to get back into the dating pool or lose yourself in the throes of passion?
If you’re in the midst of a divorce and living with children in Massachusetts, dating or having sex at home could soon be banned until all divorce proceedings are finalized, pending the passage of a new bill. In order to have sex, a judge would first have to sign-off an approval.
The proposed legislation reads:
In divorce, separation, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts.
The bill, originally filed in early 2013, was sponsored by State Sen. Richard Ross (R) on behalf his constituent Wrentham Selectman Robert Leclair. It received an extension on March 20 to be considered by the State Legislature until June 30, Think Progress reports.
Sen. Ross sponsored the bill as a courtesy to his constituent, but does “not support it,” his staff told Think Progress. His constituent, Leclair, is the former president of Fathers United for Equal Justice, and reportedly went through a bitter divorce. Speaking on the proposal back in 2011, Leclair said the bill would help protect children during the divorce process, according to Russia Today.
In order for the bill to pass into law it would have to pass the state legislature then be approved the state’s Governor.
When you hurt beyond hurt. And it feels like your heart has shattered into a thousand tiny pieces. The dream of your life obliterated when you found out he'd been sleeping with someone else. You curl up on the floor, knees pulled inside your chest, tears spilling down your face. How easier it would be to die, for surely dying wouldn't hurt so much. But you don't really want to die. You just want the pain to stop stabbing you from the inside out.
Turbulence. That's what if feels like on the inside, only the turbulence is a heart quake that can't be measured in terms of devastating impact. The crushing blow. Another woman. You howl in anger. In your deepest, darkest, bleakest moment you crash into the abyss of nothingness, because you have no idea how life will go on.
You wake up the next morning and sweep up the glass from the broken frame you ripped off the wall that fractured into a thousand tiny pieces. As you sweep up your mess, you look around the paintings on the wall: old family photographs from Sears Portrait Studios, and the brown leather couch you bought together. You don't want to think about it as you take out the trash, so you mow the lawn instead. As the hot summer sun beats down on your bare shoulders and sweat drips from your eyelashes. It's not lost on you that everything must go.
A few months later, after the dust has settled, you decide to sell the house only to have to fix it up for someone else. Ice melted through the cracks of your sky light between the frame and the dry wall and created pregnant bubbles of water underneath layers of white paint. The deck railing had to be replaced after a block of ice fell from the pitched roof. It wasn't built to code anyway.
You hire a contractor only to have to fire him because he can't fix the leak in your skylight and water filled up again like puss pockets behind repainted walls. You want to scream and wail but you find yourself sitting on unfinished oak floors looking at the wall, about to explode, and the empty boxes waiting for you to pack the kitchen because you sold this piece of shit house and found a new place to live.
You don't pray all that often, unsure if God can actually help or not, but you pray anyway as you open the yellow pages to search for someone who can fix the skylight, refinish the oak floors and replace two custom windows in the living room.
Exhausted. Drained. "What the fuck else," you screamed inside your head. Your inner Goddess unleashed, raging, baring her mighty claws and jagged teeth -- more a monster than a Goddess -- but you pick up the phone and open the Yellow Pages because Google didn't exist back then. You found Paul to fix the skylight and repair the walls. You found Peter to replace the custom floor to ceiling windows in the living room. Some guy with the last name "St. Thomas" agreed to refinish the oak floor, on short notice, three days before you closed on the sale of your home. God sent you his saints and your daughter's best friend's father, who owned a moving company, randomly called and offered to help move you and the contents of your house six miles down the road free of charge. Yes, my dear. That's what a miracle is.
You unpack the boxes and realize you want to fling each dish across the kitchen of your new home, but you don't because you bought them when you went to Poland and he didn't like them anyway. You thought you threw out the memories when you sold the house and nearly everything in it, except the kids and the dogs and the Polish pottery and all your history books, even the ones you haven't read yet. Maybe you will, if you can ever get past the fact that he hated it when you went to school and got that college degree. You made him feel inferior when you quit reading Stephen King and Danielle Steel and opted for David McCullough instead.
You broadened your horizons and spread your wings, while he stayed trapped inside his cocoon. Dish after dish you stacked in the cabinet, ripping through the newspaper and bubble wrap as if you were on a rampage, flinging your shit all over your new house, tainting its purity with all your bullshit and blame. Wherever you go baby girl, there you are.
It's such a bummer when you sit in the middle of all the torn up paper and mutilated bubble wrap and unpacked boxes, and you realize that just because you moved, your problems didn't magically disappear. You packed them up and invited them to move in with you.
Maybe, you think, you shouldn't have sold the deck furniture.
The house warming party you decided to throw, the one where almost no one showed up and you thought you were a leper until your brothers and sister showed up wearing funky hats and bringing party balloons to surprise you six weeks before you turned 40. They blew a few horns, ate cake, and left -- leaving you feeling like the last drop in a coffee cup. Cold and alone. So you go to Pier 1 and buy a papasan chair because you always wanted one, and the living room was empty and needed company.
You go to work. You pay the bills. You fight with you daughters. Would it kill you to take out the damn trash or clean the disaster you call your room? Apparently it would, because you find yourself doing it for them and wishing you could just run away from home.
You sit in your car parked in your driveway, debating whether or not to walk through the front door and brace for the assault that is your life as a single divorced mom who is racked with guilt and an utter sense of failure as a woman, as a wife and as a mother. And you wonder if things will ever go back to normal. You know they won't so you walk through the front door anyway, knowing there's going to be a fight just to get the dishwasher unloaded, and you know it's not about the dishes in the dishwasher that need putting away. It's misdirected anger being flung about like a six pointed ninja blade, ready to rip through you before you even open the door.
Divorce clear cut through your family and while you were so engrossed in your feelings of revenge and rage, your children were sliced and diced like a Ron Popeil onion chopper, and if you didn't know what to do with your anger and sadness and grief, they had even less of a clue. Your marriage ended. Everything they knew to be safe and secure disintegrated right before their eyes. The people they counted on flaked out. It doesn't matter who was right or who was wrong. The bubble burst, and on one was left steering the ship. They weren't just angry, there were scared. Where there once was balance, now there was none.
As divorce rates among adults 50 and older continue to hit an all-time high, adult children of long-time married couples can find themselves shocked when their folks announce they're splitting — and find themselves grieving with few places to turn.
People, including the adult kids themselves, often assume "parental divorce won't hurt an adult child," said Brooke Lea Foster, author of "The Way They Were: Dealing With Your Parents' Divorce After a Lifetime of Marriage" (Three Rivers Press).
Instead, in addition to feelings of bewilderment and loss, adult children find themselves in all sorts of uncomfortable situations that younger children are usually spared, like hearing about a parent's dating life, Foster says. Others feel guilt or anger from suspicions that their parents stayed together for the kids' "benefit."
But even as the so-called "gray divorce" becomes more common — Bowling Green State University professors studying later-life splits found that the divorce rate among people 50 and older more than doubled between 1990 and 2008 — there is not much guidance for adult kids navigating a complicated situation.
Here is some advice for an adult child who has just received the news:
Embrace healthy boundaries. If divorcing parents of younger children do it right, they shield the kids from a lot of the nitty-gritty, as they should. But Foster found that adult children of divorcing parents "often hear more than they ever wanted to about their parents' sex and dating lives." If you don't think you'll ever be "old enough" to want to hear about your mom or dad's romantic lives, say so, Foster advised — and repeat as many times as necessary.
Resist playing parent, mediator, friend. It may be tempting to do if you are close to one or both parents.
What's more, Foster said divorcing parents often turn to their adult children for the sort of ear that a friend, counselor or lawyer should provide.
"You can be sympathetic and loving, but it is unhealthy for you to fill any of those roles," Foster said. "You are not responsible for guiding your parents through their divorce."
Don't pick sides. Many adult children of divorce are pressured to do so, and it can become especially volatile and painful when infidelity factors into the divorce, said therapist Terry Gaspard, who started a website, movingpastdivorce.com, with her daughter Tracy Clifford. Gaspard advises saying, at the outset, "I love you and it hurts me to hear this" or "I love you and I'm sad this happened to all of us."
"Daughters in particular can be socialized to be more focused on others' well-being and to strive to be connected to others for personal growth," Gaspard said. "I see a lot of young women who put their own needs aside, and it rears its head later."
If you're experiencing rage at one or both parents for choices that led to the divorce, such as infidelity, abuse or financial mismanagement, air your grievances to a therapist, who will help you deal with the issues in an unbiased way, Gaspard said.
Embrace your autonomy. One good thing about being an adult: You get to choose who's in your life.
A tough part of any divorce is not just the loss of the original family unit but how it redefines other relationships within the clan. It's common to feel like you're losing chunks of your family, and you may feel that staying in touch with extended family on one side or the other is a "betrayal" to one of your parents.
If someone became your relative through your parents' marriage and you want to keep the relationship, do so, said M. Gary Neuman, author of "The Long Way Home: The Powerful 4-step Plan for Adult Children of Divorce" (Wiley).
"People who come from divorced families can have stronger family ties than other people, because they have a strong commitment to making family relationships work," Neuman said. "We can empower ourselves to have better family connections than we did before the divorce. You don't always have to be 100 percent healed. You can still make great progress."
Their choices are not a crystal ball into your love life, Part 1. It is natural to turn a hard, wary eye at your own romantic life and look for clues that you're headed mom and dad's way. Not helping are the statistics stating children of divorce are more likely to end up divorced themselves. Stop comparing your own relationship(s) to your parents'.
Studies show that children of divorce are more likely to freak out after an argument with their romantic partner because they view it as "proof" that all relationships are doomed. If you can't shake that belief, find a therapist.
Dismissing serious romantic commitments as unreliable or doomed to fail isn't healthy or realistic, says Sharon Brooks, author of "If Your Parents Divorced, Will You Too?" (Enlighten Publishing).
"If you're not willing to take a risk on love, you're hurting yourself by missing out on a chance at real intimacy," Brooks said.
Some of the most popular places on the Internet are "social networking sites." It is easy for people to create their own pages and add personal information. Sharing your pages or passing interesting or humorous pages you come across to others can be great fun. It can also become a serious problem if your stories, comments or photos unexpectedly end up in the hands of someone who wants to use them against you. Many Iowans are not aware of some sobering facts about content they put on a social networking site:
Are "Private Profiles" Really Private?
Multiple Friends: The answer to this question is likely no. The problem with private networking pages is users often have many friends, sometimes into the hundreds. Suppose a Person A has a page on a social networking site and is involved in a family law case. Also suppose one of Person A's website friends is also a website friend of the other party in the case. This raises questions about the privacy of Person A's social networking page. Users should remember that all content on their networking pages can be printed off. It can also be "captured" with a screen shot. The ability to reproduce this content makes it easy to share among people who are friends on the user's page as well as those who are not. By making content such as comments or pictures available to any one person, a user may actually be making the content available to everyone.
Borrowed Content: Another risk is a user's friend could take content from the user's page and post it on a public page. "Borrowed" content might be easily tied to the user. That would mean it can be introduced against the user in a family law case. This risk is not easily dealt with because social networking sites do not allow users to stop friends from copying posted comments or pictures.
Sites with Security Breaches: Privacy of social networking sites is also limited. Many sites have been subject to hacking and other types of compromises. Since the creation of social networking sites, there have been a number of security breaches related to applications placed on those sites. Some of those breaches have made users' private information available to anyone searching the compromised site.
A security breach in March 2008 made Facebook users' private photographs available to anyone who thought to search for the user. In many cases, a user who posted photos also posted comments they intended to keep private. When this security breach occurred, the "private" pictures were not the only content made available to the masses who use the networking site. The "private" comments with the pictures were also there for all to read and pass long to others.
Is "Deleted Content" Really Deleted?
Archive Programs: Electronic archives show what a social networking site looked like on a certain date. These are now showing up in family law cases. These programs show what was on a page for a user's site on a given date, even after the site has been changed. Courts are allowing the archived information to be presented as evidence. It may be enough if you can show that the archived information was once on the user's site. Most of the time this verification is done through posted user statements or pictures.
Previously Printed Content: It is important for all parties in family law cases to know one of the first things an attorney is likely to do is some research on the Internet. This will include a search of his/her client's social networking sites, as well as the opposing side's sites. This search is likely to be done before a party in a family law case even thinks about making the user's site private or deleting negative content. Also, users often give their spouse or significant other access to their social networking sites. The significant other is likely to gather evidence off the site before being removed as a friend. This evidence could be saved for trial and presented to the court to show the user in a negative light.
It Can be Hard to Delete Social Networking Site Content: Users trying to delete social networking profiles may find it is harder than they imagined. Many have found the process for deleting profiles on sites like MySpace and Facebook can take hours. Some sites even require a user to delete each comment, photograph, newsfeed entry, etc. manually, one-by-one.
Deleted content may not actually be gone. In a recent study, pictures were posted on sixteen different social networking sites. The web address for each picture was saved and the picture was deleted. The deleted pictures did not show up on the user's profile. However, when the web address for the picture was entered, the deleted picture was easy to find. In some cases, the picture could still be accessed directly by the web address 30 days after it was "deleted."
How Can Social Networking Sites be Used in Court?
Photos:In a family law case, an attorney will often search social networking sites to get pictures showing the opposing side practicing bad behavior. For example, in custody cases pictures posted by a user showing excessive drinking will be used by an attorney to argue the other parent is unfit to be the primary caretaker of young children. Also, in divorce cases, attorneys have used photos of possessions posted on social networking sites by the other side to show the user is in a better financial situation than they asserted in court documents.
Comments: The court will seriously consider a user's comments on a social networking site in a family law case. If the one side makes comments about how much he or she dislikes the other side, the court will consider that as an example of the user's inability to encourage a relationship between the children and the other party. A user should be very careful about posting comments on what he or she might do when children are around and what sort of different behavior they may engage in when children are not home. In a recent case, a mother she said she would do drugs around her children on her networking page. The court denied physical care of her children on that basis. Also, comments from "friends" should be regulated by users. A court may consider a comment from a friend about the user being at a wild party as evidence of the user's lifestyle and perhaps inability to be the primary caretaker of children.
Applications: Many social networking sites let users add applications they may not have created themselves. Examples include videos recorded by other users of social networking sites. Users should be careful when posting these applications. They may be used by the court to determine the user's viewpoint on a particular subject. For example, a father in a custody case posted a video describing domestic violence as a good thing. This video was used to support the mother's position that the father was a violent person who had subjected her to domestic violence while they were involved.
What is the Effect of Deleting Content Prior to Court?
As seen above, deleting content from a social networking site may not prevent unwanted viewing of that content. Also, it may raise suspicion about someone involved in a family law case. If a user chooses to delete all or part of a page, or privatize that page after becoming involved in a family law case, that act may be used against the user as impeachment evidence. The legal community also recently began discussing whether altering a social networking site after a court case has begun is destruction of evidence. While that question has not been fully answered, many attorneys would advise their clients not to alter or destroy their pages after being served with notice of a pending case. Instead, many attorneys would encourage their current and future clients to be aware that whatever they post now may be used against them sometime in the future.
There is no way to tell how far the use of social networking sites in court proceedings will reach. There is also no way to tell how far opposing parties will go to gather this evidence. One thing is certain. All users need to take steps to protect themselves from one day having this evidence used against them. A comment or picture posted innocently with no intent of harm, and maybe even deleted, may one day come back to haunt the user during a family law case. An important question for all users to ask before posting something on a website is "would I share this information with someone on the street?" If the answer is no, the user should not post it on his or her social networking site.
Dog trainer and walker Adina MacRae says that when she got divorced five years ago, “there was never a debate over who was going to get the dog. My dog wouldn’t even leave the property with my ex-partner.”
But dog custody for separating couples is not always so clear-cut. “I’ve seen many couples for whom what happens with the dog is a big issue,” says clinical psychologist Carolyn Humphreys.
This is especially true if children are involved. “Dogs can be great sources of comfort and continuity for kids,” she says.
Continuity isn’t important just for children; it’s essential for dogs, too. That might mean the family pet remains in one home, even if the kids are splitting their time. “A sensitive dog would probably be better staying in one home,” says dog-training instructor Tamara McFarland. “Dogs look to adults for guidance and their routine. They see kids as playmates.”
For couples without children, says Humphreys, dog custody can be complicated. She recalls one couple who “resolved it by having the dog live in one home and the ex-partner coming over for walks.”
So how can you tell if your dog would adjust well to two households—or to lots of visits? “A good measure would be how the dog takes the transition when you bring him on visits to family or friends,” Mc-Farland says. Either way, she adds, breakups “can throw dogs off.” So expect at least temporary behavioural issues.
MacRae, who now shares her home with ten dogs, says, “Some dogs don’t deal well with change. But most take things as they come. If you have shared custody or want to visit, it should be okay if you’re not projecting anger towards your ex.”
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