If you're considering hiding assets in your divorce, you might want to think twice. Alternatively, if you're concerned your spouse may be hiding assets from you know that you have options.
For better or worse, the reality is when marriage gets tough people often hide money. Regardless of their wedding vows, many couples experience such breakdown in their marriages that they rationalize and justify building a secret financial stash in anticipation of divorce. Why should they have to divide their marital assets or community property in the event of a divorce? One good reason is because the law says so.
Often such funds are surreptitiously held offshore or transferred to a family member or friend. Other strategies involve safe-deposit boxes, secret stock brokerage accounts, investment accounts and so on. In today's highly advanced technological world most records have gone electronic, therefore hiding large sums of money is no longer as easy as it may have once been.
Long dead are the days of flipping page by page through bank statements and other records to catch a spouse who is hiding assets. Now advanced software performs deep analysis of financial statements in seconds to find anomalies.
Some financially unfaithful spouses try to protect their retirement or pension account, claiming that they don't have one or more when they actually do. Although emails, account statements, company benefits websites are easy targets for such information gathering.
Can you imagine being separated from your adorable, furry companion? Increasingly, pets are becoming subjects of contention for couples undergoing divorce. In some cases, pets are even included in prenuptial arrangements, also known as "pre-pups."
There are nearly 179 million cats and dogs living in U.S. homes, according to the Human Society of the United States. Pet ownership has surged over the years, and many Americans would rather go to court than leave a bad marriage even more alone.
"It's essential a couple that has a pet deal with these with issues because pets aren't treated in the same way under the laws," said attorney Ann-Margaret Carrozza.
Vicki Ziegler, star of Bravo cable network show "Untying the Knot" about divorce battles, wrote in her July 2 blog: "Conflicts over pets can be just as important to divorcing spouses as any issue when both spouses have developed a special connection to a furry friend that they love and care for day-in and day-out. This feeling can be even greater when the couple has no children and the animal has taken on the role of the couple's 'child'."
She adds that it is becoming increasingly popular for divorcing couples to set up visitation schedules for their pets and negotiating specific agreements on who will be responsible for vet visits, dog park exercise and more.
In late 2013, a landmark divorce case involving a lesbian couple in New York featured a heated pet custody battle.
Trisha Murray and Shannon Travis fought for custody over their two-year-old miniature dachshund Joey, which Murray had bought and given to Travis as a gift, the New York Post reported.
Murray had financially supported the puppy, but Travis argued that the pet belonged to her because she was the initial owner.
The judge in the case decided to set aside property claims, using instead a different "best for all concerned" standard established by the earlier Raymond v. Lachmann court case, which involved pet possession.
Murray's attorney Sherri Donovan said that the divorce case was one of the first to set aside a one-day hearing to gauge to dog's best interests.
The hearing gave a chance for both parties to address important questions regarding the dog's well-being and physical care.
"I think what it makes clear is that animals are not a piece of furniture," Donovan said. Pets are a beloved member of the family. The standard that was set in the case is a good one and I advocate for it."
The case set a precedent for future pet custody battles waged during divorces.
"It's a one-day hearing," Donovan said. "But it does take into account the concerns of all and it does help settle cases. Now there is a standard. Before this case there was no standard, people kept filing litigation."
Many married couples are beginning to take defensive measures to avoid any future litigation over pets. They choose to include stipulations involving pet visitation rights and primary custody as a separate class in their prenuptial agreements, Carrozza said.
"I think it's clear animal right and pets are important to the 21st century family," Donovan said.
It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce. As time goes on, circumstances will most certainly change for the former spouses. However, not all Separation Agreements are modifiable. Before a spouse files a modification action, it is important to ascertain whether the separation agreement, or the relevant portions of the agreement, can be modified.
In Massachusetts, Separation Agreements either “merge” or survive”. When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances. When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances. The courts have stated that there must be “countervailing equities” to modify a surviving agreement. Although the term “countervailing equities” has not exactly been defined by the court, it has generally meant the most extraordinary circumstance will permit a modification, such as a person becoming a ward of the state absent a modification.
It is also possible for part of a separation agreement to merge, and other parts to survive. Almost always, provisions regarding division of marital property and marital debt, survive, so those provisions can only be modified in the rarest of circumstances. Provisions regarding children, such as custody, the parenting plan, child support, and payment of college costs, almost always merge, and can be modified. Other provisions, such as life insurance and alimony, can survive or merge, depending on a case-by-case basis.
However, since the Alimony Reform Act went into effect in 2012, former spouses and attorneys alike have questioned if a separation agreement that survives, or a separation agreement in which the alimony provisions survive, can be modified in light of the Alimony Reform Act. Most attorneys have agreed that the answer is no, alimony cannot be modified if the agreement, or that provision, survived.
On August 22, 2014, there was a definitive answer to this question from the Appeals Court in the case of Becker v. Phelps, where the Appeals Court made it clear that the Alimony Reform Act does not change the status of the law when it comes to surviving separation agreements. In fact, the Appeals Court interprets the Alimony Reform Act of affirming the long line of case law stating that a surviving agreement can only be modified in the rarest of circumstances.
Thus, the status of separation agreements has not changed under the Alimony Reform Act. A surviving separation agreement, or a portion of a separation agreement relating to alimony which survives, remains modifiable only in the case of “countervailing equities.” This just re-affirms the importance of understanding the difference between a surviving agreement and a merged agreement, and which applies in your case.
When parents split up, and there is a dispute over who is to get primary custody, judges generally decide this based on what they see as “the best interests of the child.” One recurring question is whether a judge may consider the ideology that a parent is teaching the child — for instance, may a judge say, “It’s in the child’s best interest to be raised by parent A, because parent B would raise the child to be racist / homophobic / pro-homosexuality / Communist / jihadist”? Another is whether a judge may prefer the parent who is more religious, on the theory that it’s better for a child to be raised with religious beliefs (or whether a judge may likewise prefer the parent who is less religious, on the opposite theory).
Some cases, though, ask whether a judge may prefer one parent over another because the preferred parent would send the child to a school (or perhaps even specifically to a public school), and the other parent would instead home-school them. I’ve blogged about this before; some cases have endorsed this non-home-school preference (see these cases from North Carolina and New Hampshire), one has expressly rejected it (this Pennsylvania case), and one is complicated (see the opinions in this Michigan case). I’ve just come across one more rejecting the non-home-school preference, Rocha v. Rocha(Kan. Ct. App. Aug. 8, 2014):
In granting joint custody of the children, but giving Robert residential custody, the trial judge ruled:
“Alright. Custody of the children…. I’m granting primary custody to Mr. Rocha for a number of reasons, one of which is your client, Mr. Probst, has made some interesting, I have to say bad or questionable choices over the pendency of this divorce. And I think that Mr. Rocha appears to be a more stable environment for the children. He also appears to understand that the benefits of education aren’t just what you learn, it’s — the socialization and interaction with other students, which are important, that cannot be achieved by home schooling.”
The trial judge also allegedly said — and this is the appellate court’s paraphrase — “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty–First Century.” Here is the appellate court’s response:
The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. We do not concur with the court’s statements as evident by the authority cited in the amicus brief [of the Home School Legal Defense Association] and also the facts of this case. While the guardian ad litem’s (GAL) report detailed Karen’s continued relationship with [Dragan] Subasic, her report also stated the children are “very polite, well-spoken, and well-behaved.” The GAL’s recommendation was “it is in the best interests of the minor children to remain here with their mother so long as there are boundaries and safeguards put in place.” There is no evidence to support the trial court’s homeschooling comments in this case.
The court of appeals nonetheless deferred to the trial court’s decision based on its non-home-schooling concerns (which apparently related to the mother’s interaction with Dragan Subasic, who apparently had a drinking problem, though the opinion is vague on exactly what Subasic may have done wrong). Still, the reasoning of the decision is firmly in the no-preference-against-home-schooling camp.
I should note that, if there is specific evidence that home-schooling is against a particular child’s best interests — for instance, the home-schooling is causing huge tensions between that parent and the child, or a child who had done great in school before is now doing poorly on tests while he is being home-schooled and there is reason to think that homeschooling is the cause — likely all courts would consider that as a factor against the homeschooling parent. (Conversely, if a child is thriving while being home-schooled by one parent, and the other parent seeks custody and would stop the home-schooling, that would likely be a factor in favor of the home-schooling parent.) The question here is whether, in the absence of evidence of specific harm or benefit from home-schooling, family court judges can rely on their own general estimation of whether home-schooling is usually better or worse for children than other schooling.
If you are thinking it has come the time to file for divorce, or any other important family law matter, there are certain types of documents a spouse or parent should always bring with him or her when meeting with a lawyer for the first time. Being prepared with these documents can assist an attorney in any initial consultation to better advise you with respect to your divorce or family law matter. So what should you bring with you?
1. Important legal documents. This includes marriage certificates and birth certificates. If you are not yet divorced, but you have a prenuptial agreement or postnuptial agreement, you should bring this with you as well. If you are already divorced, or never married, and there are existing court orders regarding your spouse or your children, you should bring any of the current court orders with you, as well as any related agreements, such as a Separation Agreement.
2. Financial documents. This includes recent paystubs. You should bring at least one month’s worth of paystubs. You will also want to bring your most recent tax return, including the supporting schedules and forms, including your W-2 or 1099. If you have the current balances of your bank accounts, retirement accounts, and other investments, this can be helpful to the attorney as well. Financial documentation such as this can assist an attorney in advising you with respect to any financial aspect of your divorce or family law case, such as alimony, child support, and division of assets.
3. Important documents specific to your case. Is there anything else about your divorce or family law matter that the attorney should see? Has your spouse recently posted something negative or incriminating on social media? Do you have any photos or videos that are an important aspect of your case? If you think there is something important about your case, make sure the attorney knows about it right away.
4. Questions for your attorney. For most people, meeting with a divorce or family law attorney is an overwhelming process. You are at a stressful time in your life, and you need legal help to get through this hard time. It can be confusing and mind-boggling, especially if you have never met with an attorney before and are not familiar with the legal process. Thus, you are bound to have questions. Prepare your questions in advance, and bring them with you to your meeting with the attorney. The attorney will go through your case in detail, and if at the end, the attorney has not answered all your questions in discussing your case, make sure you ask the questions. You want to be comfortable with the attorney who will be handling the case, so make sure all of your questions are answered and you understand and are satisfied with the answers.
Both prenuptial agreements and postnuptial agreements can be valuable tools for spouses. It can give guidance regarding the division of assets and support in the event of a divorce or a spouse’s death. It gives some predictability and certainty, which is not always guaranteed in the circumstances of a divorce in which there is neither a prenuptial agreement, nor a postnuptial agreement.
However, to have this predictability and certainty, the prenuptial agreement or postnuptial agreement must be valid and enforceable under the law. In a divorce proceeding, a spouse can seek to have the prenuptial agreement or postnuptial agreement invalidated by the court so that the agreement is not enforced. If a judge determines that the agreement is invalid, and thus not enforceable, then the predictability and certainty the agreement maintained is gone. One spouse may now get a greater share of assets or more support than originally agreed to by the parties.
Under Massachusetts law, there are some stringent requirements to making a prenuptial agreement or postnuptial agreement valid and enforceable. In general, both prenuptial agreements and postnuptial agreements must be fair and reasonable for both parties. Both parties must also sign the agreement freely and voluntarily, and not under duress or under false or fraudulent pretenses. Also, there must be a full financial disclosure by both parties, so there is full transparency of what either party may be waiving his or her rights to, whether it is a specific asset, or some support from the other spouse.
Another important consideration a court will review is whether both spouses had their own independent attorney to counsel each spouse as to his or her rights and responsibilities under the agreement. This is why it is crucial for engaged couples or already married spouses to each engage their own attorney. Experienced family law attorneys understand the requirements for having a valid and enforceable prenuptial agreement or postnuptial agreement. If one or both spouses attempt to enter into a prenuptial agreement or postnuptial agreement without the assistance of an experienced family law attorney, both spouses run the risk of the agreement being invalidated by the court in the future.
When a spouse is going through a divorce, or a parent is going through a custody or child support battle, it can be a stressful time in that person’s life. Navigating through the family court process can be confusing under the best of circumstances. If the case is very contentious, then this only makes the circumstances worse.
A spouse or parent may think that since the case is about his or her life, who would be better to represent that spouse or parent but himself or herself. However, when going through such a delicate time, in which there are rigid standards established by the law and the court, it is better for that spouse or parent to engage the assistance of a knowledgeable family law attorney to help that spouse or parent through the process.
But what can a family law attorney do that the spouse or parent can’t do on their own?
1. Remove the emotion from the case. An attorney can approach the case with the emotion and stress removed. An attorney is a neutral person coming into the case. The attorney is required to zealously advocate for his or her client, but they can do so without getting caught up in the emotion of a divorce of family law case. By its inherent nature, a divorce, child custody, child support, or any other type of family law matter is very stressful and emotional. The other party is your spouse, the parent of your child, or some other family member. It is impossible to not be emotional through this process. An attorney can advocate for a spouse or parent in a level headed manner, putting the stress and emotion aside. This way, a spouse or parent’s legal argument is conveyed in a cogent and articulate manner that is not caught up in the stress and emotion of the case. Also, as an outsider, an attorney can give you an unbiased opinion of the case, and how to strategically maneuver through the case.
2. Draft legal documents and meet legal deadlines. Many spouses and parents do not realize that if they represent themselves in court, they are held to the same legal standards as attorneys. That means all of the legal deadlines must be met in a timely manner, and all documents submitted to the court or opposing party must comply with all the laws and court rules. However, understanding these time standards, court rules, and the law in general is confusing to the average lay person. If a spouse or parent fails to meet any of the deadlines, or does not comply with a rule, it could have disastrous consequences for his or her case. Having an attorney represent you will alleviate this potential problem. Attorneys understand the different legal deadlines, and how to draft the various legal documents. They can ensure that the deadlines are met and the documents are drafted and filed properly.
3. Argue your case in court. Even oral arguments and testimony in court have stringent legal standards. Having an attorney with you to argue your case can ensure that the testimony is properly heard by the judge, and that any evidence is properly entered into the court record. Also, because the attorney a third party to the case, he or she can craft a legal argument to present to the court that conveys the importance of the case, but removes the emotion from the argument. A lawyer can effectively convey a spouse or parent’s argument without potentially saying something that the spouse or parent may say out of stress or emotion that could, in fact, damage that person’s case. Additionally, as a skilled attorney, your attorney will know how to best present your case in light of the specific facts and circumstances in the case.
4. Conduct complex analyses and engage experts. Some family law cases are very complex. In divorces there can be a complex financial matter that requires an expert. This can include a business appraiser if one spouse owns a business, a forensic accountant, if a spouse may be hiding assets. For child custody cases, a Guardian ad Litem, parenting coordinator, or other expert may be necessary where the case is complicated or hotly contested. Knowledgeable family law attorneys know when an expert is necessary in such cases, and which experts to engage. The attorney can also assist the expert through his or her analysis, and point out important facts and documents the expert should be reviewing and considering. Oftentimes these are very complex issues that the average lay person would not know how to analyze or address.
5. Draft a comprehensive settlement agreement. In a divorce, when a case settles, spouses must sign a Separation Agreement to resolve and settle the case. In other family law matters, such as child custody and child support, there are other agreements that must be drafted to settle a case. These agreements are very comprehensive and oftentimes dozens of pages long. An attorney has the knowledge of what provisions to include in the agreement to make the agreement detailed enough so that there is no ambiguity in the future. This can avoid future headaches of going back to court for a modification or contempt action because certain provisions in an agreement were not sufficiently outlined. If an agreement is drafted without the assistance of an attorney, both spouses or parents run the risk of having to come back to court in the future to enforce, modify, or clarify an ambiguous provision.
I'm living with my ex-husband again. It's not what you think.
When we married in the spring of 1998, before wedding registries were online and photos were still shot on film, our chances of staying together forever looked pretty darn good. Great, in fact. We were 26-year-old college graduates who had dated for four years, came from loving families and agreed on all of the basic fundamental issues in life.
Twelve years later, with a 4-year-old daughter, we split after two years of concerted effort to salvage our union that included couples therapy. We were the couple who still touched each other, talked to each other and spent time together. Our friends, neighbors and families were heartbroken, a couple to the point that they seemed more concerned with their own sadness than what was happening to us. But what hurt the most was the thought (spoken or not) that we were not considering our daughter and that our decision would cause her harm.
Neither were true. And, so far, we see no evidence of harm. Impact, yes. Harm, no. The impact hasn't necessarily been negative and, in some instances, arguably beneficial in terms of understanding human relationships and forgiveness. If the naysayers were to speak up now, they'd have to admit it, too (a couple of them have).
We divorced through mediation. We have no custody arrangement, no court-approved schedule or visitation, no alimony or child support.
We are still a family.
We both care for our daughter when she's sick, take her to the doctor, pay for camp, go grocery shopping and attend her Little League games. We still talk, touch (friendly hugs), and spend time together. Some may wonder why we are divorced. It's none of their business and I won't be writing about that because it wouldn't deliver anything beyond a story of how two people discovered they didn't want to be married. Some of that story is very ugly. The better story that serves more impact for other divorced parents now and in the future is this: Don't be nice for the kids' sake. Be nice for everyone's sake: the kids, yourselves, your neighbors, your families, your kids' teachers, your kids' friends. Everyone. Be the example that you would want for your kids.
Your marriage is over. However that happened, forgive each other. Revenge, money, houses and all that other stuff will not change that or make you feel better about that.
So, here I am, living with my ex-husband again, temporarily, while I'm in escrow on a house. My daughter is happy, confident, honest, healthy, and smart. She's doing well in school, has fabulous social skills, and participates in a club for kids with divorced parents. She was shocked to learn of kids with parents who don't speak, live in separate states and argued about their kids in court. I understand that sometimes those things are unavoidable. Many times, however, they most definitely can and should be avoided.
Do I wish my daughter had parents who were still married? Sometimes. Do I think my daughter would be a better, happier person if her parents were still married? Not at all.
I can't be sure what my daughter thinks. She's had a handful of sad moments about our divorce. Today, she says it doesn't matter. Tomorrow, who knows? She's 8 going on 18 in all the good ways and still a little girl in all of the best ways. Part of that maturity is nature. Part, perhaps, might be due to having divorced parents. Not a bad outcome and, arguably, beneficial.
I like to think my ex-husband and I are revolutionaries of sorts. We know very few divorced parents like us. We welcome more followers. And, I'm guessing, so do your kids.
Slowly but surely, Massachusetts is reshaping its laws around divorce. First, a task force of experts and advocates prompted a sweeping overhaul of outdated alimony laws. And two years ago, the governor’s office convened a similar committee to review the state’s child custody laws. That committee’s work is done, and the result is promising: a proposal that acknowledges that, in most circumstances, children benefit from significant time with both parents. This would put Massachusetts in line with other states that are updating their custody laws, and is worthy of the governor’s support and the Legislature’s action.
The changes to state code, if passed, would directly affect only a small portion of divorce cases: the 10 to 15 percent of couples who cannot reach an agreement through negotiation or mediation, and instead rely on the courts. But child advocates say the changes would establish expectations for all splitting families, and set the tone for settlement negotiations, by prioritizing the well-being of children over the competing interests of the parents.
Significantly, the proposal would change some of the adversarial language that’s currently in state code, replacing “custody” with “residential responsibility” and “decision-making responsibility,” and replacing the loaded term “visitation” with the more neutral “parenting time.” A new mission statement would state that significant time with both parents, when possible, is ideal. And new language would suggest that, when possible, children should spend at least one third of the time with each parent.
Of all of the changes proposed, that idea — prescribing a specific amount of time with each parent — is most likely to face resistance. Some will imagine that constant travel between homes could be too disruptive for children. Others will be disappointed that the language doesn’t mandate a 50-50 split. But the task force proposal doesn’t dictate any specific sort of split. (Parents can divide up weekends and weekdays; summers and vacation weeks could work, too.) The guidelines are a way of acknowledging research that shows the value of quality time with both parents.
The proposed changes would still leave judges broad discretion to limit a child’s contact with parents in the case of domestic violence, substance abuse, and a range of other factors. Judges would be able to penalize parents for deliberately trying to alienate a child from a father or a mother. The need for such safeguards underscores a sad reality about divorce: There is no way to eliminate all acrimony from the process, or to shield children completely from disruption. But as a baseline effort to put the needs of children first, and to bring Massachusetts custody laws into the present, these changes are worth pursuing.
Divorce and what leads up to it are not tidy and polite affairs. The children who bear witness to the demise of their parents' marriage inevitably get wounded -- some very deeply and invisibly at first. No matter how old a child is when his/her parents' divorce occurs, the child learns a life lesson about the shadow side of love and its potential impermanence. Learning this lesson through the end of your parents' marriage and perhaps the subsequent re-partnering of either or both parents, is confusing at best and life-threatening for young children who are dependent upon their parents for their very survival.
When we fall in love and marry, many of us have stars in our eyes and fantasize about living happily ever after. Then reality sets in and tests our ability to fulfill our vows to love, honor and cherish each other through the trials and triumphs of life. If we lived in a perfect world, love would last and be stronger than all the challenges that tear us apart. In reality, maintaining a loving relationship takes a lot of commitment, honesty, and vulnerability. It's not for the faint of heart.
As a child of divorce, a life coach, and an interfaith minister who officiates at many weddings, I do not think that divorce, in and of itself, is a bad thing. In fact, I wish my own parents had divorced much earlier than they did which would have spared us from living in a cold war of mixed messages at home that wore a public mask of a perfect family.
When a parent leaves, so does a part of the child -- we often hide the vulnerable and innocent parts of ourself to avoid dealing with our feelings and needs. We lack the personal resources to cope and our parents are too busy fighting, so most of us are left with the options of either expressing or repressing our emotions and fears. Hiding them is usually a safer bet.
These days most parents are too busy to be as attentive as their child(ren) need them to be when the family is falling apart and the kids are too often left to fend for themselves. However, this is a crucial time for a child. No matter how young or grown a child of divorce is, he or she has probably internalized some deep lessons that may remain as an unconscious filter through which he or she experience the rest of their life unless and until becoming aware of those messages and developing a realistic and healthy understanding of the matter. The two most dominant messages that kids of divorce internalize are believing that their parents' divorce is somehow their fault and that love is conditional and might not last. Let's take a closer look at both of these messages.
Younger children tend to be more susceptible to thinking the divorce is their fault. "If only I hadn't ... then Mommy and Daddy would still be together" is what many kids tell themselves. Some try to "fix" the situation by being on good behavior, imagining that doing so will be all that is needed to bring the parents back together so they can live happily ever after as a family. Even after the parents are officially divorced and are living separately, many children fantasize about what they can do to get their family back together again. For a child who thinks his or her bad behavior is responsible for the parents splitting up, it makes sense that they think their good behavior might reunite them and that their bad behavior might stave off a new suitor.
The second dark message many children of divorce hear is that love is conditional and does not last. 'You loved my Mommy or Daddy, then he/she did something you didn't like and now you are divorced. I better be careful or you'll divorce me too." We want our children to believe that our love for them is unconditional, but divorcing their other parent gives them a mixed message.
When we internalize the message that love doesn't last, we learn to protect ourselves from getting hurt by not getting too close to anyone. We may evolve a survival strategy of avoiding intimacy - especially emotional intimacy as a way to avoid the vulnerability of ever feeling so powerless and devastated again. We may keep to ourselves or choose to use other people without actually bonding with them.
What can parents do to help their children thrive rather than hide when the family is breaking apart?
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