I live in Massachusetts, and my spouse lives in another state; does it matter where we file for divorce?

Often, both spouses still live in the same state, perhaps even the same home, when they decide to divorce. However, if a couple has separated, one spouse may have moved to another state. In that case, jurisdictional law will determine where a divorce can be granted. Divorce law varies from state to state, though, and each state has different rules that govern whether it has jurisdiction over a divorce. Typically, the rules focus on where each spouse lives, and for how long, but other relevant factors may be where they each lived when the marriage broke down, where the couple lived during their marriage, and how long each spouse has lived at his or her current residence. The rules are not always as obvious as they might seem. Moreover, state law about some aspects of divorce, such as alimony, child support, parenting time and the factors affecting asset division can vary significantly. For example, in Massachusetts, child support can extend until a child is 23 years old, so long as the child is attending school full-time, but in New Hampshire child support ends at age 18 or graduation from high school. Therefore, in circumstances where it might be possible for two different states to exert jurisdiction over a divorce, the decision of where and when to file may be crucial, and is an important matter to discuss with your attorney.

Holiday Parenting Time

Holidays can be very difficult and stressful for families dealing with divorce or separation, whether the case is in process or already completed. Every parent wants to spend time with his or children during significant holidays, and sharing that time can present difficult, emotional issues. No one wants to be a visiting parent. The children will benefit if parents have been able to agree upon a parenting arrangement for the holidays, which may entail compromise from both parents. Do both parents’ families celebrate the same holidays? Do the families live close to each other, or are they on opposite sides of the country? If there are no orders in place that ensure time to each parent has time with the children, then one or both parents may want to consider negotiating holiday time, with the assistance of an attorney, or returning to court to obtain an order ensuring that time. Families with existing orders may find it appropriate to revisit and retool them as the children grow up. Planning ahead will ensure that there is time to address parenting time sufficiently in advance of the holiday.

Brady decision

This is not a family law decision but it is news — and very interesting reading(at least to a lawyer!) — and it does provide some insight into the arbitration process, an increasingly popular alternative to trial: https://cbsboston.files.wordpress.com/2015/09/bermandecision.pdf

Will mediation work for me?

If used properly, mediation in a divorce or post-divorce case can minimize both cost and acrimony. Another benefit of mediation is the ability to craft a creative agreement that suits the needs of your family. Are you and your spouse (or ex-spouse) on a level playing field, meaning that neither of you will attempt to use mediation to dominate the other? If so, then mediation may be for you. Ideally, your mediator will be an experienced attorney with mediation training. Also, mediation does not negate the need for each of you to have independent counsel, if only to review the resulting agreement to ensure that it serves your best interests.

Mediation

If used properly, mediation in a divorce or post-divorce case can minimize both cost and acrimony. Another benefit of mediation is the ability to craft a creative agreement that suits the needs of your family. Are you and your spouse (or ex-spouse) on a level playing field, meaning that neither of you will attempt to use mediation to dominate the other? If so, then mediation may be for you. Ideally, your mediator will be an experienced attorney with mediation training. Also, mediation does not negate the need for each of you to have independent counsel, if only to review the resulting agreement to ensure that it serves your best interests.

Divorce and the family business

When there is a family business, whether one or both spouses operate the business, it is important to determine its value. Depending upon the size and type of business, it may have a very significant value or a negligent value. A specialized appraiser can speak with the business owner, examine the business financial records, and perform an analysis of the value. Often, the appraiser can provide an indication at the inception of his or her work as to the likelihood that the business has significant value. A divorce attorney works closely with the appraiser to ensure access to a appropriate and complete set of information for the appraisal. Of course, a business also provides a stream of income; if the parties disagree about the extent of that income, the appraiser may also be retained to analyze the owner income.

Why do I need an attorney for an uncontested divorce hearing?

People sometimes wonder why they need representation at an uncontested divorce hearing. By that time, an agreement has been signed and all issues have been resolved between the parties. However, what people sometimes overlook is that the agreement will not be entered as a judgment of the court unless and until a judge has found it to be fair and reasonable under the particular circumstances of the case. Often, an agreement that appears unfair on its face, and therefore is vulnerable to rejection by a judge, could have been approved if an attorney, or preferably, attorneys for both parties, had been present in the courtroom to offer an adequate explanation. In addition, a judge is more likely to approve an agreement if she or he sees that the parties have been represented by competent counsel and received the benefit of that advice. No one wants to appear in court with an agreement that is rejected by a judge, with instructions to return with a revised agreement. The best way to present such a result is representation of by counsel.

I am recently separated; how will I know whether I will receive alimony, and for how long?

Massachusetts substantially modified its alimony law in 2012.  As a result, courts were provided with more guidance about the circumstances under which alimony should be awarded, the length of time that alimony should be paid, and the events that should trigger a termination, reduction or suspension of alimony.  Typically, alimony will not exceed the recipient’s need or 30 to 35% of the difference in the parties’ gross incomes.  However, there are exceptions, and the court may deviate from that formula under some circumstances.  The duration of alimony typically depends upon the length of the marriage, i.e., the longer the marriage, the longer the term of alimony.  Moreover, Massachusetts now recognizes several categories of alimony:  rehabilitative, reimbursement, transitional and general term alimony.  Because of the intricacies of this law, the interplay of alimony with other divorce-related issues, and the wide array of interpretations within the court system, it is wise to discuss your circumstances with an attorney to determine how the law applies to your particular circumstances.

Abuse Prevention Orders (aka restraining orders)

Massachusetts has a statute that authorizes the courts to protect someone who has been abused or threatened with abuse from a family member or household member. Abuse is defined as physical harm, being placed in fear of imminent serious physical harm, or being forced to engage involuntarily in sexual relations. The abused and abuser must be family or household members, the definition of which includes people who have been in a “substantive dating relationship,” people that “are or were related by blood or marriage,” and people who have a child in common regardless of whether they have ever been married to each other or lived together. A violation of an abuse prevention order is considered a crime. A 2012 amendment to the statute added protection for domestic animals; this change in the law made a lot of sense, because many abusers harm household pets, or threaten to abuse the pet, and use the presence of the animal to keep the abused person from seeking assistance. If the abuse occurs when the courts are closed, which often is the case, the local police can assist by obtaining an order from the emergency judge on call, which is always available. While rational people typically comply with court orders, an abuse prevention order will not stop someone who is irrational or truly intent on harming another person, so it is always wise to seek counsel and take all steps to protect both family and pets.

Can men receive alimony?

Massachusetts has an Equal Rights Amendment so the law is gender neutral in the sense that requires the courts treat people equally without bias based on gender. This means that men, as well as women, can be eligible to receive alimony. Typically, alimony is paid by the primary provider for the family. This means that if the wife was the major income earner during the marriage, she could pay the husband alimony. However, many factors are considered when considering an alimony claim and it should be noted that alimony is not awarded automatically.