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.

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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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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.

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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.

 

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.

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

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