Amaral & Associates, P.C. - Divorce, Family Law

Posts Tagged property division

Do I Have To Give My Spouse Part Of My Business In Our Divorce?

asset division, business planning, divorce and assetsWhen spouses are going through a divorce, one thing that always must be addressed is property division. However, when one or both spouses own a business, or even have an interest in a business, property division can be much more complicated. A common question spouses ask is: Do I have to give my spouse part of my business in our divorce? In Massachusetts, the short answer is No, but the answer isn’t that simple.

 

Under the property division statute in Massachusetts, Massachusetts General Laws chapter 208, section 34, the Probate and Family Court must consider the following factors in dividing the marital estate:

 

length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive. In fixing the nature and value of the property … Read More »



Pet “Custody” and Divorce

Pet “Custody” and DivorceIn all families, pets are just as an important member of the family as anyone else. Unfortunately, the law has not caught up with this view. Therefore, when spouses divorce, “custody” of a pet is not treated on the same level, legally speaking, as custody of child. In child custody matters, the legal standard is the “best interests of the child”. However, for pets, the law considers them property, and subject to property division under marital property laws.

When you think about how important a pet is to the family, thinking of them property is unbelievable. It seems like too much of a sterile and unemotional process, that when you are dividing the silverware and furniture, you have factor Fido into that division.

Although the law has not caught up with the popular mentality about pets, spouses are addressing pet “custody” in a more sensical manner in divorces. In cases involving children, the pets typically follow the children, as much as possible, during each spouse’s parenting time.

In cases where there no children, if the pet … Read More »



Who gets the house in a divorce?

Who gets the marital home in a divorce?Q: I’m getting a divorce. Who gets the house when the divorce is finalized?

A: The short answer is, it depends. There are many factors that must be considered in determining who gets to keep the marital home during a divorce.

Q: What factors are considered in determining who gets the marital home in a divorce?

A: One of the biggest factors is finances. If either or both spouses want to keep the marital home, the court will consider whether he/she can afford the operating costs of the marital home. Also, the court will consider whether the spouse who wishes to retain the marital home can afford to buy out the other spouse based upon the remaining equity in the marital home.

Q: How does a spouse buyout the other spouse’s equity in the marital home?

A: This can be done in a few ways. First, the spouse who retains the marital home can take out a mortgage, or refinance the existing mortgage and … Read More »



Property Division in a Divorce

Property Division in a DivorceQ: What is martial property?

A: Massachusetts law has a very broad definition of marital property. It defines marital property as property owned by either or both spouses, whether acquired during the marriage, or prior to the marriage. This means that if property is in only one spouse’s name, or was bought before the marriage, it is marital property and subject to property division in a divorce.

Q: What kinds of property are included property division in Massachusetts?

A: The short answer is EVERYTHING. This can include:

Real estate Bank accounts Stocks and bonds Retirement accounts Pensions Investment and brokerage accounts Personal Property Vehicles (including airplanes, boats and yachts and recreational vehicles) Business interests Interests in trusts Inheritance vested and nonvested benefits rights military retirement benefits Profit-sharing Annuity Deferred Compensation Insurance policies (with cash surrender value) coin collections frequent flier miles Professional baseball season tickets country club memberships Artwork Lawsuit proceeds Timeshares Income tax refunds Q: How does the law decide how the property is divided in a divorce?

A: There are several factors that must … Read More »



Facebook, Twitter, and Other Social Media: A Party’s Best Friend or Worst Nightmare in Family Law

Any matter pending in a family court is emotional and difficult for both parties. There are all types of cases that are heard by family courts: divorces, child custody and visitation, child support, paternity, and many more types of cases. Within these types of case, many issues are addressed, such as property division, the income and financial needs of a party, and the suitability of a party to parent and care for children.

Like in any other court of law, each party in any family court case has to prove his or her case with evidence. Increasingly, social media, such as Facebook, Twitter, Instagram, and other social media sites are being used as evidence in these cases. This evidence can be the best friend of the party offering the evidence, and the worse enemy of the other party. But how is these social media sites being used?

For cases involving child support and alimony, or any other aspect that includes the financial needs of a party, these sites can be used to show that a party is actually working, … Read More »



FAQ’s About Massachusetts Divorce Law

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 … Read More »



Postnuptial Agreements

Dear Clients and Friends,

Properly executed pre-nuptial agreements have been enforceable for sometime in the state of Massachusetts. These agreements are entered into between the couple before they are married to protect assets each party had at the time of marriage. Here are Amaral & Associates, P.C., we prepare pre-nuptial agreements on a regular basis on behalf of our clients.

Post-nuptial agreements, however, are entered into after a couple is married. They were considered invalid in the United States at one time and the present case law in Massachusetts has been uncertain as to the current validity until recently. Based on a July 16, 2010 case, entitled Ansin v. Cravin-Ansin, a Mass. Supreme Judicial Court case, the court for the first time enforced a post-nuptial agreement. Therefore, it is now possible for a couple to remain married yet prepare an agreement regarding how their assets are to be divided in the event of a divorce. This agreement could be helpful for parties who are thinking of getting a divorce or are afraid of losing additional assets if the marriage were to be extended. By having an agreement in advance, neither party would … Read More »



Antenuptial Agreements: Setting the Tone for Compromise and Communication in the Marriage

Prenuptial Agreement

A pre-nuptial agreement is a great test for a marriage and the couple’s ability to compromise on what will likely be recurring themes in the relationship. Relationships, like a prenuptial agreement, are full of compromise and negotiation. Two people entering into a marriage need to know how to have the difficult conversations and find fair and reasonable compromises.

A prenuptial agreement is a good way to start the relationship with full disclosure and open communication about these likely and potential issues that will continue throughout the relationship. Entering the marriage with knowledge instead of unrealistic expectations and an arsenal of tools developed before conflict arises will help a marriage weather the minor disagreements and difficult times that all relationships face.

There are a few key reasons that couples embarking on marriage typically consider getting a prenuptial agreement, 1) pressure from the family of the wealthier partner, 2) protection for children from previous relationships, 3) a large wealth and/or income disparity, and 4) protection of a particular asset. These reasons and concerns do not magically disappear after the wedding only to reappear … Read More »



PreNups: Myths v. Truths

There are several myths regarding Pre-Nuptial Agreements that prevent many couples from broaching the topic. Keep reading to find if a Pre-Nup is right for you!

MYTH #1: ONLY PROTECT WEALTHIER SPOUSE

False. Pre-Nuptial Agreements must be fair for both parties. If the Agreement is found to be unconscionable by the Judge, it will not be honored.

MYTH #2: ONLY FOR THE RICH

False. Even if you and your spouse do not have much now, over time your income and assets will most likely increase. Your home and retirement accounts will probably become more valuable and you may even inherit additional money or assets from your families. A Pre-Nup can protect the accumulated wealth and decide how it will be dealt with.

MYTH #3: MUST COVER EVERYTHING/ONLY USEFUL IF YOU SPLIT

False. The agreement can be as detailed or broad as you like. It can be limited and cover one specific asset or inheritance, or deal with a wide range of areas. You may also specify in the Pre-Nup issues that you will encounter during the marriage, such as the usage of … Read More »



Divorcing During Your Golden Years

Recently there has been an uptick in divorces amongst Baby Boomers. Given that Baby Boomers are now in their 60’s, a divorce involving Baby Boomers, or any older couple, is known as a gray divorce.

Although a divorce for an older couple proceeds just like any other divorce does, there are certain factors that both spouses must consider and be aware of during their divorce if divorcing in your Golden Years.

First, if either spouse, or both spouses, are currently receiving Social Security, there are important regulations from the Social Security Administration, that the spouses should be aware of. Any widow or widower of a deceased spouse will receive that deceased spouse’s basic Social Security benefit amount when the widow or widower reaches full retirement age. This remains the case for divorced spouses who were married at least ten years. Thus, if a couple is married 10 years or more, and then one spouse dies, the surviving spouse will be entitled to receive the deceased spouse’s full social security benefits, as long as the … Read More »



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