Divorce Articles

How to Handle False Allegations During Child Custody & Divorce

It seems like everyone knows a story about false allegations during child custody and divorce. One spouse points the finger at the other and receives a restraining order from the court. The wife or husband recognizes that doing this will, almost by default, give them custody of the children and exclusive use of the family home. The accused parent then must defend themselves in court and prove these allegations false.

While false accusations are a legal mess, it is also terrible to have someone who you once shared a life make claims of either abuse or neglect. It is something no one is ever really prepared for. You may feel you should reach out to your soon to be ex-spouse, but this can actually make things worse for you. Additionally, trying to make contact could be used against you. It is not unheard of for there to be accusations of stalking, harassment, or violence when all you want to do is smooth things over. No matter how tempted, it is best to keep away, and, with a clear mind, take more appropriate actions. [Read more…]

Separation Agreements

posted by Eric Schutzbank –

A Separation Agreement sets forth the specific terms of what is agreed to by the Parties in resolution to their divorce. These terms might include details about custody, parenting schedules, child support, alimony or spousal support, division of property, taxes, and payment of debts and anything else that needs to be addressed when resolving a divorce by an agreement. In a Joint Petition for Divorce, the Separation Agreement is negotiated and drafted prior to filing. In contested litigation, it is drafted at some point prior to the conclusion of a trial on the merits. A well drafted agreement is specific to the situation and concerns you may have while also addressing the mandatory legal terms.

Separation agreements in Massachusetts have to address whether or not the terms are modifiable by the Court. Some portions function as an independent binding contract that cannot be modified by the Court over the objection of the other party. These portions are known as the surviving provisions of the agreement and usually address things such as property division and debt repayment. Those terms which are modifiable by showing that a material change in circumstances has occurred usually address issues relating to the children, child support and health insurance coverage. These terms are said to merge with the Judgment. One issue that varies depending on the circumstances is alimony which can either merge or survive. [Read more…]

Limited Assistance Representation

posted by Eric Schutzbank –

Limited Assistance Representation is when an attorney represents or assists a litigant with part, but not all, of his or her legal matter, instead of the standard full representation on an entire case. Limited Assistance Representation allows an attorney to assist a self-represented client with specific issues on a limited basis. This might include preparing or reviewing documents, appearing in court for a crucial event such as a Pretrial Conference or a Motion to Dismiss or giving legal advice. This type of representation is also known as providing unbundled services. This type of limited representation permits the attorney to automatically withdraw representation at Court after completing agreed upon services.

Although the attorney does not fully participate, the attorney owes the client the same duties of loyalty, competence and confidentiality for the limited representation as he would under full service representation. The attorney also must review the limitations of the legal assistance with the client. The attorney and client must enter into a written fee agreement that gives a detailed description and explanation of the services to be provided by the attorney. [Read more…]

Child Custody – In the Best Interests of the Children

posted by Eric Schutzbank

Divorce is rarely easy, and even less so when it comes to custody and parenting arrangements for children. In Massachusetts, the top priority of the courts is to determine if arrangements are “in the best interests of the children”, but that may not always be as straightforward as it seems. This is not the time to try and do it yourself. Instead, seek competent legal representation and hire an attorney who can ensure that you have a parenting plan that you are comfortable with and is able to meet the necessary legal requirements.

Massachusetts recognizes shared legal custody, sole legal custody, shared physical custody and sole physical custody. When a couple files for divorce, both parents are presumed to be granted temporary shared legal custody. This allows both parents to have equal responsibility (and rights) concerning major decisions like medical care, education and religious development. Legal custody does not cover the day-to-day decisions such as what to have for dinner or what time to go to bed. During what can be contentious times, differing ideas about the schooling or religious upbringing of children can surface. Having an attorney can ensure that these discussions and decisions remain on track and comply with the law. [Read more…]

Alternative Dispute Resolution: Divorce without Contested Litigation in the Massachusetts Probate & Family Court

Family law disputes such as divorce, child custody, visitation, spousal support are often emotional and can be stressful. When two parties cannot agree, they may believe taking their case to court is the only option. However, litigation is expensive and can be a very lengthy process. Additionally, the courtroom environment empowers the judge to make decisions instead of allowing the two parties involved to decide what is best.

Alternative Dispute Resolution methods provide viable alternatives to litigation and these options often allow the parties involved to determine what works best rather than leaving decisions up to a stranger. Consider these effective alternatives.

1.    Mediation: A productive way for each party to discuss, debate and decide for themselves the issues that are important to them, including child custody, financial support and property division. A professional mediator is a neutral facilitator who helps the parties communicate so they can reach resolution. Through a series of sessions, the mediator helps the parties negotiate an agreement that they have crafted.  The mediator then will draft a formal document outlining what was agreed upon. That document, known as either a Separation/Settlement Agreement, will then be submitted to the court for approval. A Divorce or Judgment cannot issue until the Agreement is approved by a judge. Since a mediator cannot give legal advice (even if the mediator is an attorney), it’s often recommended that both parties separately consult their own attorney to discuss their individual rights and the consequences of certain decisions within the agreement reached through mediation.

2.    Arbitration: A neutral person or arbitrator hears arguments from both sides and makes a decision based on the evidence presented.  It is a less formal procedure than Court litigation and the rules of evidence are often relaxed.  Arbitration can be binding on the parties (meaning no appeal of the decision is permitted).  The process is less expensive than court litigation and often can be finished more expediently given the volume of cases before the Court.

[Read more…]

Spousal Support Modification: What You Need To Know Whether You Pay or Receive Spousal Support

posted by Eric Schutzbank

Alimony is a word that most divorcing parties do not want to hear. The higher income earning spouse doesn’t want to pay to and the lower income earning spouse either doesn’t want to ask for it or isn’t getting enough in support to meet his or her bills. Until the Alimony Reform Act of 2012, family law practitioners could not give their clients any concrete guidance on how much alimony they would pay or receive. Even how long they would pay under a settlement was a guessing game at best. The Alimony Reform Act established durational limits, set an end date for alimony in long-term marriages and established that the amount should be between thirty and thirty-five percent of the difference in income between the parties. The law also set out varying effective dates for when parties paying alimony could seek to terminate or modify their alimony based on the new statute. Those dates are stacked between the date the law went into effect last year and March of 2015.

Grounds for Modification:

Remarriage of or Cohabitation by the Recipient

Under the Alimony Reform Act, alimony terminates automatically upon the remarriage of the recipient. There is no longer a need to go to Court to have alimony terminated in this situation. In many cases, if the spouse who is receiving the support cohabitates (moves in) with someone else with whom they are involved in a romantic relationship (so platonic roommates do not count as cohabitation but could be an economic change in circumstances) before the alimony period ends, the support can be suspended or terminated. Whether or not the Payor needs to file a Complaint for Modification and go back to Court, however, depends upon the language in the parties’ Separation Agreement or Divorce Judgment. In this situation, it is up to the Payor to take the other party to court to request that alimony be suspended or terminated due to the cohabitation of the Recipient Spouse.

[Read more…]

When can a Divorce Decree or Separation Agreement Approved by the Court be Modified?

posted by Eric Schutzbank

While lawyers like to plan for all contingencies, the reality is that life is extremely fluid and we cannot predict all of the possibilities. A parenting plan that works when the children are ages three (3) and five (5) may not work very well when the children are seven (7) and nine (9). When a Separation Agreement is drafted or a Judge issues a ruling after a divorce trial. The decision is based on what is equitable and/or in the best interests of the parties and/or children at the time of the divorce. Certain matters, such as property division, are final and are never modified. The reason that property division is not modified, absent a fraud upon the court, is that both parties to a divorce need to fully be cognizant of their assets and liabilities so that they can best move forward with their lives. If it was possible to change how the property was divided, it would be impossible to move forward or plan for the future. Issues such as custody, parenting plans or child support are modifiable in order to ensure that the best interests of the children are always being met. In addition, the Courts recognize that the income of child support Payors or Recipients can change.

What Can Be Modified?

Whether or not a portion of your Agreement or the Decree can be modified depends on whether that issue merged with the Judgment or Survived as an Independent Contract. In layman’s terms, merger basically means it is modifiable and survived basically means it is not modifiable. Property division always survives. Child custody, child support and parenting plans are always merged and always modifiable. Alimony is a hybrid as it can either survive or merge.

Legal Standard for Modification

The legal standard is a phrase meaning the level of proof required for the Court to rule in your favor. To modify custody or parenting plans, you must have a material change of circumstances to go to court regarding a modification and what you are requesting be ordered/modified must also be found to be in the best interests of the children. This material change of circumstances can equal a major geographical move, a job change that affects the current custody arrangement, the desires or needs of the children changing, a parent becoming addicted to drugs or alcohol or anything else that may make the current arrangement not in the best interest of the children. Talk to a qualified attorney first to determine if your circumstances warrant a modification to avoid unnecessary time in court. [Read more…]

New Massachusetts Child Support Guidelines Effective August 1st

posted by Eric Schutzbank

Under Massachusetts law, the Child Support Guidelines must be reviewed every four years to determine if revision is required.  The Chief Justice of the Trial Court appoints a Child Support Guidelines Task Force every four years for this purpose.  The Court has approved revised Child Support Guidelines which take effect on August 1, 2013.  The Child Support Guidelines are used by Trial Court judges in setting temporary, permanent or final orders for current child support, in deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders.  The Trial Court recently announced these changes and summarized the key changes.  The goal of the task force was to analyze the relevant data and produce revised guidelines based on the current economic climate for families raising children in Massachusetts.  The review process included input from the public and the bar, and reviewed case files, economic analysis, as well as judicial and staff commentary.   The Guidelines were last revised and promulgated in 2009.  Additional information on the quadrennial review of the state’s Child Support Guidelines can be found at http://www.mass.gov/courts/childsupport/index.html.  What follows below is a statement from the a press release from the Chief Justice of the Trial Court listing a summary of the most important changes.

[Read more…]

Family Law: Parenting Through Your Divorce

posted by Eric Schutzbank

Our children are an integral part of our lives and keeping them safe is what parenting is all about.  Parenting together after divorce presents new challenges to an already difficult process, but navigating painful emotions to maintain a united front is an essential part of the job.  The bottom line is, kids feel healthiest when their parents get along.

Breaking the News

Depending on age, discuss the process openly in your family.  If possible, include both parents in the discussion.  Emphasize that while the family is changing, it is not ending.  Divorce means that a marriage is over, it does not mean that a parent’s relationship to his or her child is over.  Your children should feel secure that both their parents love them and neither parent will leave their lives.  Make sure they understand that the divorce is not their fault, that there is nothing that they can or should do to change things.  Remember to answer their questions with as much care and honesty as possible.  They will probably have quite a few questions, and answering them, repeatedly if necessary, will help them regain the sense of security that they’ve lost.  [Read more…]

Three Ways to Protect Your Credit During a Divorce

posted by Eric Schutzbank

The emotional aspect of divorce often makes it difficult to focus on the details of what needs to take place. One of the areas that is often overlooked is your credit rating. How can you protect yourself? Consider three tips.

1. Take inventory. Pull your credit report to get an idea of everything that is out there. Be aware that some lines of credit may not be reported to a credit bureau. For example, you may have a credit account with your dentist office or other private service provider. Look through past records to try to identify any creditor you may have overlooked that is not on your credit report. You should also find out if your spouse has credit accounts with a private service provider that may be considered marital debt. [Read more…]