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

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If giving up custody of my two children to my husband can I go back in several years and try to get custody?

caring father with childrenLet me correct you about certain assumptions your question seems to be making:
In today’s environment, “fault” is not necessary to prove against the other spouse to get a divorce. In other words, infidelity, cruelty, abandonment etc., does not have to be plead or proved to get a divorce, and frankly most lawyers do not file a fault based divorce because it only means more expense and time (though of course the option is still available). There are more difficult issues that have to be argued, such as custody, support and distribution of marital assets– which is where the modern divorce attorney should focus time and energy.
Children born to a married couple gives BOTH parents legal and physical custody rights unless and until a court of law says otherwise. So there is no need for you to “give up custody” of your children simply because your spouse is alleging or threatening to allege infidelity. The topic may never come up and the Court would rather focus on who is the appropriate parent to have physical custody of the minor children. The Court prefers to see shared legal custody and physical custody to one parent. So don’t be in too much of a hurry to give up your lawful rights to your children.
To answer your question: custody and all matter relating the the care of children can ALWAYS be revisited while the children or minors or in college when they are older (unless you surrender these rights through an adoption –which is non-reversible).
I suggest you consult with a Family Law attorney, including my own firm, and get the right information about what is likely to happen in a divorce action, and what rights you have unless you voluntarily give them up.

When Can I Stop Paying Child Support? :-(

“My kid is 18 now.  Can I just stop paying child support to his mother?”

I haven’t run the stats on this, but its my unofficial opinion that this is the most commonly asked question from people looking up legal advice in child support matters on line this year.  As we Baby Boomers age, our children are becoming college age and beyond.  Divorces in the 70s, 80s and 90s that once revolved around alimony, child support and pension plans now revolve around college costs and medical insurance. As the economy struggles, more and more noncustodial parents are seeking relief from the “burden” of child support. and are looking to terminate child support at the earliest possible juncture. So I’m seeing a lot of divorces that didn’t address the emancipation of their children as a vital part of future protections and obligations now coming into court asking for some clarification as to when they can finally stop sending those darn checks?

signing pen

The shortest distance between two points, finding out the extent of your support responsibilities and when you can stop paying, is to read about it in your Divorce Agreement. That, of course, would mean you and your ex would have addressed it at the point of negotiations and settlement arrangements, that the terms of your Agreement were approved by the Court and that it was incorporated by reference in the final judgment of divorce.  Further, the extent and details of the Agreement provisions addressing the terms of emancipation of the child (or children) would have to be examined.

Whether a parent may stop paying child support is predicated on one of two things: (a) an Agreement or Settlement of Divorce (or paternity) that addressed the issue and spelled out what would constitute the emancipation of the minor children of the marriage (such as at age 18, or if over age 18 but still in college, etc.) and if the parties agree, without further requirement of judicial intervention, to terminate child support upon the occurrence of a set of conditions precedent (b) state statute.

If the parties cannot come to an agreement that includes terms they can live with and maintain, then the court will apply statutes that cover the issue and define the bottom lines.

The first thing to keep in mind is that a dependent child’s right to receive support from a noncustodial parent does not automatically end the minute the clock strikes midnight on the 18th birthday. There are facts and circumstances that will affect a court’s ruling on whether to terminate child support.

Firstly, is there a divorce agreement and does the agreement address the emancipation of the child and the termination of child support? An agreement (esp one that has been reduced to a judgment) will probably control. Barring an agreement, we look to the statutes:

The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.

So there’s the black-and-white of it. —But you’re not out of the woods yet, my friends.  You MUST get an agreement and/or court order that says you no longer have to pay child support (—for that child–you may still be obligated to pay for other children).  If your income is garnished through the Dept of Revenue, nothing but a court order will stop the garnishment.

In MA, the way you get a court order to terminate child support obligations is by filing a Complaint for Modification in the Probate & Family Court of the county where the child support order and/or divorce was entered.  The form itself is not complicated; you can find it online at the court’s website.  However, the litigation may become complicated.  There are many borderlines cases where a child may, for example, be over 19 not in school, but still dependent on the custodial parent for support and maintenance.  Noncustodial parent’s ability to pay may be a countervailing element.  The court will take many factors into consideration.  There is no “slam dunk” or “black-and-white” prototype.  Another option is to file a Joint Petition to dissolve the child support obligation.  This sounds a bit easier, but its actually not–procedurally. Either way, I strongly urge anyone with these types of concerns to consult with an experienced Family Law attorney.

If I haven’t convinced you yet that the best thing to do is get a court order to terminate your child support obligations, perhaps this will:  You can go to jail for not paying child support.  As long as an order sits on the records, and has not been overturned by subsequent order, the obligor (you) will be held accountable for making those payments.  If you do not make them, they accrue as arrears, with penalties and fines.  There is no forgiveness –repeat–NO FORGIVENESS —for arrears. The Dept of Revenue will hunt you down, they will arrest you, confiscate your assets, seize bank accounts, revoke your drivers license and any other license that your work may depend upon — we’re talking merciless.

stock-photo-father-crying-hugs-teenage-son-closeness-forgiveness-loss-transition-solace-157483391

And don’t forget, you’re doing this for your child.  Put aside whatever harsh feeling you may have for your ex, cutting off a life line to a young adult, especially in this day and age, is something you should think about carefully and be flexible in negotiating.

Estela Matta, Esq.

http://www.emattalaw.com

Dad Must Pay Half of Daughter’s Law School Costs

Reprinted by Permission – American Bar Association Journal

A Rutgers University history professor will have to pick up half the cost of his daughter’s education at Cornell Law School, which will cost him about $112,500, according to a New Jersey appeals court.

James Livingston is required to pick up the tab because of terms in his divorce settlement agreement, according to a decision (PDF) last month by the New Jersey Superior Court, Appellate Division. The New Jersey Star-Ledger and the National Law Journal (sub. req.) have stories.

The divorce agreement said Livingston would pay half the expenses for his daughter’s post-college higher education, according to the opinion. The agreement also said the daughter would provide Livingston with a copy of her class schedule, grades and financial aid information within five days of receiving them. Both Livingston and his ex-wife were not obligated to make any financial contribution, however, if the daughter did not maintain a C grade point average.

Livingston initially offered to pay $7,500 a year for his daughter’s legal education, provided that she attend Rutgers Law School, live at home with her mother, and provide him with progress reports, according to the opinion. He claimed his daughter should have informed him of financial aid offers from other law schools, and he should have been allowed to jointly decide with his daughter which law school she would attend. He also argued that his continued estrangement from his daughter was a changed circumstance that relieved him of his obligation.

The appeals panel rejected those arguments. A frequently used provision in divorce settlements gives fathers the right to participate in school selection, but Livingston’s agreement didn’t have such a clause, the court said. The court also pointed out that Livingston was already estranged from his daughter when he entered into the divorce agreement.

“If a relationship and a voice in the planning and selection of a school were his expectations,” the court said, “such terms could and should have been included in the agreement. They were not.”

 

My Ex told me to stop paying her the child support. Is this legal?

Only a court of competent jurisdiction can vacate the child support order. If you fail to pay under the existing order you could be setting yourself up for a Contempt charge. If your ex no longer wishes to receive payments from you for the children, she will have to go to the Probate & Family court that issued the order and seek a new order terminating the child support obligations. She will have to give GOOD CAUSE why the court should absolve you totally of your support obligations. Unless she just won the PowerBall lottery and/or is independently wealthy, she will be hard pressed to explain why you should be exempted from the absolute duty to support your children. Another reason why the court might terminate your obligation is in the case of domestic violence.  In the past, where a woman or the children were in danger of retribution from paying spouse, she could claim good cause due to danger of physical harm if the paying spouse knew their whereabouts. Today, this is less likely because the court can arrange to have the payment made to the Department of Revenue for benefit of the children and the spouse need never have any contact with the wife or children.  This will depend on state laws.

Until such time that a court has terminated your child support obligation, I strongly advise you to continue making your payments. If she refuses to accept payments or fails to negotiate your checks, place the money in a trust or escrow account for the benefit of the children. If the contempt charges should later surface, you will have a very good defense and you will have the money to make the arrears payments.

father holding hands with child

The bottom line is: DO NOT STOP YOUR PAYMENTS UNTIL A COURT ORDER TERMINATES OR MODIFIES YOUR OBLIGATION. If you wife should actually take this matter before a judge, then you should retain counsel to assist you navigate this tricky situation.

Can both spouses file for temporary orders in Massachusetts? And what happens if both spouses request the same order?

Either party can file any motions it deems necessary and appropriate to advance its case; that includes motions for temporary orders. If both parties file timely motions for temporary orders, the court will hear both sides the same day. (Your lawyer  or the clerk of the court will tell you about how to notice the opposing party and other filing requirements.)

itsyourfault

Orders on motions in child custody/support cases are always decided upon the same basis: the best interest of the child and who makes the best argument why the child would be better off in their custody.  Motions for Temporary Orders should be filed right away (with or soon after the filing of the Complaint for Divorce).  Temporary Orders can remain in place throughout the pendency of the litigation and are often converted into permanent orders at disposition.  There is no strategic advance in filing first in this instance.

You should discuss these concerns with an knowledgeable family law attorney.  Contact my office for a confidential consultation.
www.emattalaw.com

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. 🙂

As part of divorce, I agreed to pay half of college costs for kids. However, last year I declared bankruptcy Am I at all protected?

Your legal remedy is go file a Complaint for Modification of the Divorce Agreement immediately. Only the court can determine if you are absolved of this legal/contractual responsibility due to the bankruptcy. 

However, you should know  that when filing a Chapter 7 or 13 bankruptcy petition, an automatic stay provided by Bankruptcy Code section 362(a) immediately goes into effect which prohibits all creditors’ attempts to pursue collection of a claim against the debtor or against property of the debtor’s bankruptcy estate unless excepted.

Section 362(b) of the Code provides for certain exceptions, including many family law matters and domestic support obligations. On the other hand, some family law obligations may also be considered priority claims under Section 507(a)(1) of the Bankruptcy Code, entitled to a priority in payment in bankruptcy, specifically, Bankruptcy Code Section 362(b)(2)(A)(ii) provides:

The automatic stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding for the establishment or modification of an order for a Domestic Support Obligation such as child support. 

In other words, the Bankruptcy code allows a modification of the child support order; however this still leaves a question of whether the terms under the divorce agreement in also covered by this. Typically, if you filed and received a discharge in a Chapter 13 case, you may be able to discharge property settlement obligations. It is likely that an agreement to pay for college would be in the nature of support, rather than property settlement, so the likely answer to your question is “No.”   However, only a court of competent jurisdiction allow you to modify your obligation under the Divorce Agreement.

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What are the steps to gain full custody of my daughter?

“Custody”, as used in a domestic relations context, is made up of two parts: Legal and physical. Where a child is born to a married couple, both parents have a natural right to both physical and legal custody. These legal parental rights can only be altered by judicial intervention, when the parents legally separate or choose to dissolve the bonds of matrimony. (Of course, the State can intervene on its own in initiative to sever or alter these legal rights in cases of allegations of neglect or abuse.)

“Legal custody” of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, medical care, etc.

“Physical custody” means that a parent has the right to have a child live with him or her.

These simple delineations are muddied by the legal options of “sole” legal or sole physical custody and joint legal/joint physical custody.  In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents. Some states will award joint physical custody to both parents to allow the child to spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat stable routine. One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.

Now that we understand the framework of a custody question, we can discuss the process. Typically, where parents are seeking divorce, they must file a Complaint that lays out what relief they want the court to grant as part of the divorce judgment; they will include a request for custody and support of the child/ren. Many factors are considered by the court in making its determination–everything from any history of alcohol or drug dependency, to conduct and lifestyles of the parents, to their ability to communicate with each other and the child, to quality of life for the child.  The standard for assessing the most suitable custodian for the child is “the best interest of the child”.  Most typically, court will grant sole physical custody to one parent, and joint legal custody.

An unwed mother or father may also seek custody of a child.  This is done by filing a Complaint for Custody in a local Family Court.  It will involve first establishing paternity.

“Full custody” legally speaking– means sole legal and sole physical custody of the child.  This is harder to achieve.  The burden is on the moving party to prove why the other parent should be “shut out” of the child’s life.  The court is disinclined to do this. The removal of parental rights is a separate procedure, usually brought by the state in severe abuse and abandonment situations.

Lastly, even in circumstances where a parent is given sole legal and physical custody, the courts will encourage visitation by the child with the non-custodial parent. Every custody order will be accompanied by a visitation order and schedule.

Custody hearings can be very contentious.  Not only is the custody of the child at issue, but associated with the custody is the right to support.  The non-custodial parent pays the larger share of the the support obligation–usually in the form of weekly or monthly cash payment to the custodial parent until the child is 18, 21 or 23 years old, depending on their status as a college student and the history of the parents’ own education levels. Child support is a percentage of the combined incomes of the two parents: 17% for one child, 25% for two, and so on.

A person would be well advised NOT to seek a custody/support order without the assistance and benefit of legal counsel knowledgeable about the laws and procedure of the Probate & Family Court. If you feel you cannot afford a lawyer, there are various agencies and organizations that may be able to provide free or low cost legal representation. http://www.masslegalservices.org is a good place to start looking (for MA residents).

If you have a question about a prospective custody application, or if you have an existing order you want modified, please contact the Matta Law offices.