Category Archives: Legal Separation

SEPARATION v. DIVORCE

Dissolution of a marriage can only happen through a divorce decree issued by a Court of competent jurisdiction. However, many states issue “legal separation”, “conversion divorce”or “separate support” judgments– which fall short of a divorce but still address certain marital situations.

A legal separation and separate support are types of applications to the court to recognize that parties wish to live “separate and apart”, wish to formalize financial arrangmeents but are not seeking a dissolution of the marriage. These proceedings address primarily financial arrangements between the parties, and custody if children are involved.  They do not address distribution of marital assets such as the marital home or pensions, etc. And of course they do not dissolve the marriage.  The biggest distinction between separate support and legal separation is in individual state laws.  New York recognizes “living separate and apart” as a “legal separation”, whereas Massachusetts does not.  It will interpret the issues addressed in any MA proceeding for separate support more narrowly than a state like NY, that allows a legal separation to be “Converted” into a divorce after one year of the filing.  MA does not have conversion divorces, i.e. a legal separation that can be converted into a complaint for divorce upon which judgment for divorce may be entered. MA requires a new action specifically calling for the termination of the marriage.

A person wrote to me asking about housing arrangements between the spouses in what appeared to be a “living separate and apart” situation where no legal action of any sort had been commenced. This lead to a discussion of distinct ways in which parties may resolve end of marriage or separation problems:

If you are married, [housing] is an “extra-legal” question, meaning the law does not cover this subject because the law does not interfere with how a husband and wife make out their living arrangements; so it is up to you and your spouse to come to some agreement you can both live with.

If you are already divorced, you have to look to the divorce judgment for any express terms and conditions that address this question. Typically something is said in the judgment about distribution of the marital home–who gets to stay, how has to leave, if one party has to buy out the other party’s interst or refiance a mortgage, etc.

If you are still married, but living apart you have 2 options under MA law: filing for “Separate Support” which brings the issues of care and maintenance before the court but does not conclude a divorce; or one might have to consider filing for divorce. At that juncture, the courts will step in and force a distribution of assets and other settlements provisions which could include a housing allocation for wife and (minor) children. Its best to consult with a local lawyer to get a better understanding of the process and laws involved in your state, as well as an opinion tailored to one’s specific facts and circumstances.

Thank you for reading the Matta Law Blog. Please like us on FB (Counselor at Law) and Twitter (#attorneymatta).

Advertisements

Can I Protect My Pension From My Soon-to-be Ex?

MA adopts the position that ALL assets of the parties (individual and marital) are put on the table for distribution at time of divorce. Many states honor “separate property” doctrine at time of divorce–that is property the parties’ owned before marriage or in their name only — but MA does not.  So, any pension in place during the time of marriage is subject to division. Its very hard to get away from the strict letter of the law when it comes to pensions; however, you and your spouse are free to negotiate and make any arrangement you want, that is acceptable to the Court, if you settle your divorce by agreement.  You can negotiate the distribution of assets (including pension funds), custody, child support, alimony–ALL OF IT. You can have a lawyer draft an divorce agreement which addresses all the issues that must be addressed, present it to the Court and once approved, the Agreement will be incorporated into the final judgment of divorce and those will be the orders you will live by thereafter.

Your spouse my waive the right to her share of the pension funds in exchange for something or for nothing in return. It’s the spouse’s right to waive. If she is truly willing to make the transition as painless as possible she might consider waiving her interest in the pension, or exchanging it for some benefit she wants, such as paying for college for the kids or keeping the marital home–this, of course, should be based on the value of the pension assets she is waiving. Typically, the spouse is entitled to half of the pension funds.

itsyourfault
Health insurance: You can voluntarily agree to continue the children’s health insurance after the divorce. In fact, if the spouse doesn’t have a comparable policy or if the children are dependent on your coverage for their insurance you may be ordered by the court to continue their coverage as part of the child support order.
Another thing you might want to consider is a separation agreement, if you and your spouse are not ready for a divorce but want to live apart. MA doesn’t recognize legal separation but does have provisions for separate support. This addresses living apart, the support for the children and possibly support for the spouse; it will NOT address distribution of marital assets or the divorce itself.  Separate Support judgments  in MA do not convert into divorce (as in some other states); if you decide you want a divorce, you would have to start an action distinct from the separation papers.

Hope this was helpful 🙂

Estela Matta, Esquire

Can a Separation Agreement be changed after Judgment?

It is unclear what you are referring to when you say “Separation Agreement”. MA does not recognize legal separations;it does however allow for actions for Separate Support. Agreements for separate support address only the custody and financial needs of the (custodial) spouse and the children (they do not address distribution of marital assets). Unlike in other states, such as New York, where a separation agreement can convert into a divorce action, MA requires the commencement of an entirely new action if the couple decides they want to terminate the marriage after a period of separation.

If however,you are referring to a Settlement Agreement prepared to address all the elements and issues in the dissolution of the marriage, and subsequently incorporated into the Judgment of divorce: these Agreement are always open to modification in regards to any issues involving the care and custody of the children, even if the Agreement does not merge with the Judgment.

In short, your wife is entitled to seek a modification of the child support amount scales of justice 2

and seek to increase that amount to meet the child support guidelines. This however may be mitigated by other “trade-offs” you may have conceded as part of the negotiations for the final Agreement.

Modification cases are highly particularized and require an experienced attorney to navigate. If you have not done so already, you should consult with an attorney to review the Agreement and Judgment and help explain your situation in light of the facts of your case.

MATTA LAW reaches new benchmark

MATTA LAW’S Attorney, Estela Matta, has reached a benchmark of over one thousand of YOUR legal questions answered. More than 750 unaffiliated attorneys have concurred and agreed with the legal content, quality and particularized information provided by Attorney Matta in answer to your individual legal concerns. Keeps your questions coming!

When your case matters–call Matta Law.  A proven record of successfully representing clients in Massachusetts Divorce, Custody, Child Support, Guardianship and Will /Probate matters.

Check out Attorney Matta’s profile, client reviews and professional recommendations by peer attorneys.

http://www.avvo.com/profile/dashboard#!  or go to http://about.me/emattalaw

profile pix1

 

Free 1/2 hour consultation. Use the “Contact me” tab on http://www.emattalaw.com or call directly 617-500-7508 with your legal  questions and concerns. Serving the entire Commonwealth of Massachusetts.

Past performance is no guarantee of future results. No guarantee, implied or explicit, is to be construed hereby.

 

 

Can I back out of divorce/separation agreement?

An agreement isn’t binding until a judge signs and enters it. If you find, after consideration and possibly advice of independent counsel, that the terms and conditions enclosed in the Agreement are not tolerable or include things you feel you can not live with, then do not passively allow it to happen to you.  Once the Agreement is entered into the court and made into an Order, you are bound by it. But, you can stop it at any time before that.  (There are ways to open the Agreement and modify certain terms and/or conditions, but they are difficult and costly.)

An Agreement memorializes the things the parties want and agreed to.  If you don’t agree, then its pointless.  Step back from an Agreement that does not represent what you agree to.  Don’t be bullied or coerced into signing.  If you signed it already, you have a last chance at the final hearing to express to the Court that you did not willing sign the Agreement.

torn curtain

Whether you live in an equitable distribution state or a community property state, property (personal and marital) can be put on the chopping block for distribution. The time and money and effort you put into the marriage  has a quantifiable value. I think every party should fight for their fair share.

You should retain a lawyer and fight for the things you are entitled to receive. The short answer to your question is: YES.

 

How to Find Your Spouse’s Hidden Assets.

What ever happened to that collection of priceless sports memorabilia? What did she do with all the expensive jewelry you gave her over the years?  Are you shocked that your soon-to-be-Ex’s Sworn Financial Disclosure Statement didn’t mention that 2nd IRA you know he has?

Divorcing spouses in all states can use powerful legal tools, called “discovery,” to help them find hidden income and other assets when they are in the midst of a divorce or child support action.

Any court action that will ultimately involve a court order for distribution or payment of money will require financial disclosure statements.  The first step in dividing assets during a divorce is to create a complete financial picture of all of the assets owned by each spouse. Generally, these assets will be categorized as “marital” (property acquired during the marriage), “separate” (property acquired before the marriage, after separation, or by gift or inheritance), or “comingled” (where you’ve mixed marital and separate property together, for example, in a bank account or retirement fund). These are general definitions; the laws of your particular state will dictate exactly how property is characterized.

Even though you may not have ownership rights in your spouse’s separate property, it’s important to account for all of it because (depending on your state’s laws) a court may consider the value of both spouses’ separate property when deciding how to divide marital property and debts.

letmeexplain

Finding Assets When You’re the “Out-Spouse”

If your spouse handled the bookkeeping during your marriage, and you played little to no part in tracking finances, you are what some attorneys refer to as the “out-spouse.” This simply means that you don’t have immediate access to or knowledge of financial information, but your spouse does.

If you’re the “out-spouse,” your first course of action should be to simply ask your spouse for copies of all financial records. If your spouse can and will produce all records, the information gathering process might not be too painful. Alas, this is rarely the case. Sometimes, your spouse simply can’t find the records. If so, the two of you can work together to gather information. With online access to just about everything nowadays, it’s easy to get account records. You can also send joint requests for records to mortgage companies, banks, retirement plan administrators, and other third parties.

Unfortunately, many spouses refuse to produce information because they’re hiding assets. Finding hidden assets in divorce can be challenging, especially for non-attorneys. This article explains what a basic search should entail, but we’re not suggesting that you should conduct every search yourself.

If you believe your spouse is hiding assets, you may want to contact an attorney with experience in asset search and investigation. Even if you don’t suspect your spouse is hiding assets, it’s wise to consult with an attorney to ensure you’re asking the right questions and if appropriate, using the discovery methods listed below.

The Divorce Discovery Process

If you don’t think your spouse will voluntarily disclose all financial information in your divorce, you or your attorney will need to use a formal, legal process to get information and documents. Attorneys and judges refer to this as the “discovery process.” The discovery process provides several methods of getting information, which vary slightly from state to state, but for the most part include all of the following:

Document demands. Your attorney can ask your spouse to produce specific documents, such as tax returns, financial statements, loan applications, and account records.

Written questions called “interrogatories” or “requests for admission.” Using these discovery tools, your spouse must answer questions in writing, or admit specific statements that you believe are true.

Inspection demands. You can ask to inspect property like a safe deposit box or wine collection.

Testimony given under oath. In what’s called an oral deposition, you, your spouse, and your lawyers appear before a court reporter; your spouse is sworn to tell the truth and must answer questions asked by your attorney.

The discovery process is a good way to get financial information from an uncooperative spouse because the court has the power to compel compliance. For example, if your spouse fails to produce documents, you can ask a judge to order your spouse to do so. If your spouse disobeys the order, a court may punish your spouse by imposing a “sanction,” which can include monetary fines or even a judgment against your spouse on a particular issue.

A deposition is a particularly good way to get information from a dishonest spouse. Anyone who lies under oath during a deposition can be charged with perjury. This may be just the right kind of pressure your spouse needs to tell the truth about hidden assets. Typically, you should wait to depose your spouse until you’ve obtained some financial records. This way you can ask your spouse questions about records and information you’ve already examined.

What to Ask For During Discovery

You should ask for documents and information relating to assets, income, debts and liabilities. Don’t forget that assets come in different forms. Tangible assets include cash and other hard assets that can be sold or liquidated like the family residence, cars, jewelry, fine art, a wine collection, and other personal property. Intangible assets include assets such as savings accounts, checking accounts, brokerage accounts, retirement accounts, stocks and stock options, investment income, royalties, copyrights, and patents. So be sure to request a wide variety of records including receipts, loan documents, deeds, title records, account statements, stock certificates, subscription agreements, royalty agreements, tax documents, and W-2 forms.

Start with the tax return

If you’re the “out-spouse,” you probably weren’t preparing or reviewing tax returns during the marriage. It’s essential you examine these during a divorce. Some important areas of a return are covered below. But don’t stop here—tax laws and accounting issues are complex. It’s important to consult a tax advisor if there are complicated tax issues in your divorce.

Form 1040: Income from wages. As discussed in more detail below, this is where you’ll find income from all reported sources, including wages, salaries, tips, interest income, dividends, business income, capital gains, IRA distributions, pensions and annuities, unemployment compensation, and social security.

Form 1040: Interest and dividend income. Income-earning investments like bonds, bank CDs, savings accounts, money market accounts or loans made as a lender will show up here. It’ll also show dividend income like income paid to stock shareholders. If either the interest or dividend income exceeds $400, a Schedule B should be attached that will identify the source of the income.

Form 1040: Retirement plan distributions. Distributions (money received) from a deferred-compensation plan or IRA account are listed on the 1040. If there were distributions, ask where the funds went.

Carryforwards. A “carryforward” is an IRS or state income tax rule that allows taxpayers to save an unused deduction, credit, or loss and use it in a later tax year. For example, you may “carryforward” charitable donations that exceed 50% of your income and apply these in another tax year. Similarly, if you exceed the yearly limit for contributions to your child’s 529 college savings plan by say $2000, you may be able to carryforward the $2000 and use it as a deduction in a later year. These types of credits should be accounted for in the property division.

Refunds. Review old returns to find previous tax refunds. Sometimes a spouse who anticipates a divorce will intentionally overpay taxes for a previous year, expecting to get the entire reimbursement after the divorce is final.

Schedule A: Itemized deductions. This is where itemized deductions are entered including any state and local taxes paid on income, real estate and personal property. These payments may be related to hidden assets located (or income generated) in another state. For example, if your spouse paid property taxes for a property you weren’t aware of, you’ll need to learn the name on title, the purchase date, and the source of any payments on the property.

Schedule A: Miscellaneous deductions. Deductions here may include expenses for tax and, possibly, estate planning advice. If you didn’t know your spouse consulted a tax professional or estate planner, you may want to follow up directly with these individuals. Your search could uncover additional assets, such as a hidden trust.

Schedule B – Part III: Foreign accounts. In addition to the sources of dividend and interest income, Part III of Schedule B may contain a list of your spouse’s foreign accounts and trusts.

Schedule C: Profit or loss from business. Schedule C is used to report profit or loss from a business operated or a profession practiced as a sole proprietorship (a businesses owned by a single owner). Be sure to review the reported sales, expenses of the business, costs of goods sold and net income to get an idea of how your spouse’s business is doing.

Schedule E: Supplemental income and loss. Here you can find income-generating assets including

rental real estate

royalties from literary and artistic works such as music and books

royalties from copyrights, patents, and software

investments in partnerships and S-corporations, and

estates and trusts.

Loan applications and financial statements

Before approving a loan, a lending institution will ask for a completed application, copies of recent pay stubs, account records, and a signed declaration regarding all assets and debts. If your spouse applied for a loan, get a copy of the application as it might reveal hidden income or assets.

In addition, your spouse may have submitted a personal financial statement to a lender. A personal financial statement should include all assets, debts, income, and expenses. It’s basically a report from your spouse to the bank regarding all of his or her own finances and the marital estate. You should definitely ask your spouse (or the lender) for copies of all personal financial statements your spouse prepared.

Trace accounts and cash flow

Tracing (analyzing) accounts and cash flow during the marriage (tracing all money in and money out) may lead to the discovery of hidden assets. In order to perform a complete tracing, your attorney or accountant will need records for all accounts under one or both spouses’ names (whether held alone, jointly, or with a third person). This includes savings, checking, brokerage, trust accounts, and any other accounts used by either spouse during the marriage.

Get copies of cancelled checks and ask for copies of wire transfer documents, including authorization forms and wire instructions, to see if your spouse authorized any major transactions you weren’t aware of. Find out where the funds went. Did your spouse set up another personal account that holds a stash of cash? Did your spouse “gift” money to a relative or friend that your spouse will undoubtedly get back once the divorce is over? Did your spouse move money into a joint account with a third party? Tracing is a great way to uncover hidden assets.

Search for hidden bank accounts

You or your attorney can send a subpoena (a written request issued by the clerk of the court) to any bank where you suspect your spouse has an account. When subpoenaed properly, a bank is obligated to produce all records associated with your spouse’s name. If the bank fails to do so, it can be held in contempt of court.

Review account records carefully. Search for transactions into and out of known accounts. Look for unfamiliar account numbers. For example, if you find a large transfer into or out of your spouse’s account, check to see where the money came from or went. Banks typically list the name of the sending and receiving institutions and the last four digits of all accounts. If you find an unfamiliar account, you may have discovered a hidden asset. Follow up with a subpoena for records to that bank as well.

If you have questions about finding assets in your divorce case, you should contact an experienced family law attorney in your area for advice

Can My Husband & I Just Agree How We’ll Divide Our Property?

Verbal agreements between the parties are totally unenforceable in law. You must memorialize an agreement in writing and file it with the appropriate court. Any Settlement Agreement between the parties is subject to approval of the court.  In addition to certain statutory requirements, the Agreement must be “fair”, not entered into under duress and each party should have advice of independent counsel.  Retaining a counselor to draft, file and argue the matter in a court is the best course of action.  This is really not a time for self help.

MA does not recognize legal separations, but does have other provisions to protect the separated spouses. If you are contemplating a separation, consider a separate support petition.  This is will allow a couple to establish a support order for spouse and custodial parent, if you have children.  It will NOT  address distribution of property and does NOT dissolve the marriage.

Couple-disagreeing

http://online-divorce-lawyer.com.au/tag/divorce-property-settlement/

http://www.avvo.com/attorneys/02110-ma-estela-matta-4257429.html

Does a legal separation freeze assets and debts at the time of filing?

The short answer is: NO

There are big difference between divorce and “separation”. MA does not have a provision for legal separation—only for Separate Support. Which means if you want to stay married but live apart, support orders can be entered which can include child custody and child support as well other provisions. However, the distribution of marital assets are not considered when a separate support application is filed with the Probate & Family court unless there is abandonment by the defendant spouse.

If you are concerned with treatment of property and assets should you and your spouse part ways, you are better off filing a Complaint for Divorce, which places an automatic stay on both parties restraining the sale, transfer, gifting or dissipation of assets or the further accrual of further marital debt to may have to be divided. 

Legal Separation is treated differently in different states.  MA does not have provisions for legal separation, while New York, on the other hand allows a legal separation to be converted into a divorce after a 12-month period.

You should consult with a local divorce attorney familiar with divorce and separation laws in your state about your concerns and rights.

My husband has lied three consecutive times on his financial. What can I do about the under-reporting of income and assets?

Spouses that lie or under-report income are not uncommon in Divorce and Child Support proceedings. You have to bring whatever evidence you have of the under-reporting to the court’s attention. You should file a motion for further financial disclosure, which opens the door for a discussion of his finances in court. You can also use evidence of a life-style inconsistent with his reported income as evidence of under-reporting.

Hiring a private investigator or forensic accountant is another way to expose under-reporting.  Where the conduct is egregious enough, I have reported lying husbands (and wives) to the Internal Revenue and forced an audit, letting lose the forces of the federal government to unearth the hidden money.  Facing jail, heavy fines and penalties, most spouses cough up the money. 🙂

My husband wants to separate. What do I do before he leaves to protect myself?

Massachusetts does not have a comprehensive system for legal separation.
There is one statute relating to legal separation in Massachusetts: it is the “Separate Support” statute, Massachusetts General Laws, Chapter 209, Section 33. The statute only addresses the issue of SUPPORT in a Massachusetts legal separation, and does not address property division or other issues that would be resolved in a divorce. However, custody of the children of the marriage can be addressed in an action for Separate Support, as it impacts on support issues. This section has  traditionally been used by couples who were reluctant to obtain divorces due to their religious teachings or other considerations.

A Separate Support action is a completely separate legal action from a divorce.   If the couple separates under M.G.L. 209 and subsequently wished to divorce, it must be through filing a Complaint for Divorce.

Generally, I would advise a divorce, rather than a separate support action, since the divorce addresses the full range of issues relevant to the dissolution of a marriage and particularly because it would place automatic “stays” (legally restraining the dissipation, sale or gifting) of all property.  As part of the divorce you and your spouse (with the assistance of counselors) can try to work out a “separation agreement”. If upon review of the proposed separation agreement the court finds it suitable, fair and equitable, then the Court may approve and incorporate it into the judgment of divorce. If you fail to come to agreement, the court will –at its own discretion–render a decision on the distribution of assets after a trial.

Your best defense is an offense!  File for divorce immediately.  Collect all information about your fiances: social security numbers, bank statements, investment accounts, retirement and pension funds, property deeds, income tax filings for at least three prior years, credit cards, etc.  A modern divorce comes down to custody and support of the children, if any, and distribution of the marital assets–which in MA includes everything you own together as well as everything you individually own.  So get a good lawyer to insure all your rights are protected from the start.

This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney.  Matta Law – the Law office of Estela Matta, Esq. offers a free half hour consultation.

10 Lawyers agree
Best Answer
chosen by asker