Family Law & Divorce Questions

Additional Information:

I have been married for 8 months, we have a 10 month old daughter. I just found out that my husband has a criminal background and has been using a fake name since I have known him.   What are the requirements for an annulment in MA?  How should I proceed?

ATTORNEY ANSWER:

It is unfortuate that you’re going through this situation.  There are various grounds for an annulment in Massachusetts.  The one ground that might fit your situation is fraud.  You would have to show that the fraud went to the heart of the marriage.  The fact that your husband did not tell you about his criminal background would not likely qualify as grounds for fraud under the law.  Providing you with a fake name would likely meet those grounds.  It is also possible that your marriage was not valid in the first place if he used a fake name on the marriage certificate.  That being said, you should be aware that granting of the annulment would mean that you would need to then file a separate complaint (either for Patenrity if he did not sign the voluntary acknowledgment at the hospital or for child support) to obtain any support and custody orders.  It would be less expensive to file for divorce so that child support, custody and any visitation he might seek can all be dealt with at the same time.  You should consult with experienced family law attorney to find out more about your rights and obligations in this matter.  [Read more...]

Additional Information:

My ex and I have agreed to lowered payments and we have drawn up a new agreement which we both signed and had notarized.   Is what we did legally binding or can she sue me for back child support?

ATTORNEY ANSWER:

While parties can agree to modify without going to court, such agreements are nonbinding.  She can in fact file a contempt for back child support if she so wishes in the future.  There is an easy Joint Complaint for Modification of child support that can be filed administratively and approved without going to court if the clerk magistrate determines that the amount being paid is within the child support guidelines or reasonably close to the guidelines amount.  You should consult with an experienced family law attorney to determine if the amount you’re agreeing to is likely to be approved by the court.  [Read more...]

Additional Information:

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son. My question is if I put it in my will that my brother will take care of my son should I pass, will that happen or can my wife get custody if she wants? Thanks.

ATTORNEY ANSWER:

As the child’s biological mother (same would apply to fathers in this situation), she will automatically be entitled to custody in the event you die, unless her parental rights have been terminated. The granting of sole legal and/or sole physical custody does not terminate parental rights of the other parent.  If you do not want your former wife to have custody, you would need to instruct your brother to file for Guardianship of your son in the event of your death.  You should state in your will that you do not want your former wife to get custody and should have a separate document stating the reason why you believe that she is unfit to have custody and why it is in your child’s best interests to be raised by your brother. You should leave sufficient funds to your brother for this purpose (perhaps having a small life insurance policy of $30,000.00   to cover any legal fees).  Your brother will have to prove that she is an unfit parent in order to be named Guardian of your son. [Read more...]

Additional Information:

As part of our divorce settlement I’m supposed to keep my ex wife on my health insurance. We have no kids. Now I’m getting re-married and I’m wondering what the heck I should do because I’m pretty sure the insurance company isn’t going to let me have two wives on my health insurance policy. How do I fix this? Can I remove my ex from the health insurance?

ATTORNEY ANSWER:

The “fix” to your situation depends on the language in your separation agreement. In most separation agreements, the provisions covering health insurance generally contain language that states the former spouse is covered so long as eligible for such under the insured spouse’s plan.  First, you need to read your agreement and see if it states this.  Next, contact your HR department or insurance company and get confirmation that they are not covering former spouses if the employee remarries.   If they will cover, obviously you’re all set.   If not, you will need to send a written note (e-mail is fine) to your former wife letting her know that you are getting married (assuming you have not yet told her) and your insurance will not cover her once you remarry.  You should further tell her that your understanding is that your employer will be sending her notice of a termination date and her available options for coverage under COBRA.  The one caveat to consider is that you could have obligations to pay for COBRA depending on how the health insurance provision in your settlement agreement was worded. If you have additional questions, please do not hesitate to contact me directly. Thank you and good luck. [Read more...]

Additional Information:

I separated from husband in 2008 and moved to Chelmsford, MA from NY. How can I get divorce if we have no contact? We did not have any children from marriage but I do have a ten year old from previous. We parted in ill terms & I have no way of contacting this man as I do not know where he moved to after I left. How hard is it to get a divorce in the State of Mass?

ATTORNEY ANSWER:

It is not difficult to get a divorce in Massachusetts. Usually, you file for divorce and can have your spouse served at their last known address. As you know that he moved from his last known address, you will have to accomplish service by Publication. This is a request to the Court to publish in a local newspaper the legal notice that you are seeking a divorce. If you have any knowledge of where your husband’s parents or siblings live, you might want to contact them to see if they have a means of contacting him as that would make it easier.  As you have lived here for more than a year, you can file in Massachusetts. Once you have filed and served by publication, you will have to wait six months to request a hearing. At that hearing, so long as you have complied with service requirements, the Court will enter a Judgment of Divorce Nisi which will become final 90 days later. I would be happy to discuss the process further with you. [Read more...]

Additional Information:

Do a husband and wife both have to be present to file a joint petition for an uncontested divorce in Massachusetts?  Do we have to go together or can we go separately?

ATTORNEY ANSWER:

Generally, both parties to a divorce (even an uncontested matter) have to appear at Court to present the separation agreement for approval.  This is so that both parties state on the record that they voluntarily entered into the agreement and agree that it is fair and reasonable under the circumstances. A Motion to Waive Appearance of one Party is sometime allowed for good cause (such as it would be an economic hardship for a party to travel from out of state for the hearing) so long as accompanied by an Affidavit setting forth the reasons to waive the appearance of that party. [Read more...]

ATTORNEY ANSWER:

Once the divorce is final, you can get remarried approximately four days later. You can apply for a marriage license one day after your divorce becomes final. It usually takes three days for the license to issue. Obviously, holidays and weekends and other days town offices are closed can change this calculation. Please note that in Massachusetts, the divorce is not final when you present your agreement to the Court. In a joint petition, the Judgment Nisi does not issue for 30 days after you’re in Court. Once the Judgment Nisi issues, there is still a 90 day waiting period for your divorce to become final. [Read more...]

Additional Information:

We live in Lowell.  My wife has a mental illness and has made bad decisions in the past, lets my daughter do whatever she wants and is basically more of a friend than a parent to my daughter. She lies and manipulates my daughter and I have totally stayed out of that game and am committed to being a parent..PERIOD. However, now that my daughter is turning 14 and her mother is more lenient and lets her do what she wants, I am worried that my daughter may want to go live with her mother. What can I do to stop this? [Read more...]

Additional Information:

I want no legal ties. Shouldn’t I wait until refinancing to sign?  We agreed that I am moving out and he wants the house. We agreed that he would try to refinance to get the house in his name only. I agreed to even help pay if it costs money to refinance because the house is now worth less than owed. We have our first court date in less than a month. I don’t want to sign a quit deed until the refinance and I know I will not have any legal responsibilities or destroy my credit. I want control if he can’t refinance so at that point we can try to sell or do a short sale. I have moved out and we have agreed that he will pay for the house from now on. Should I sign that quit claim deed yet?

ATTORNEY ANSWER:

If you are represented by counsel in your ongoing divorce, I strongly suggest you ask your attorney about this issue. Signing over the deed does not end your marital interest in the home. Given your concerns about his ability to refinance the property, my advice would be not to sign the deed until he gets approved for financing. [Read more...]

Additional Information:

Father has full physical custody. Mother has court ordered visitation which includes overnight visits. Due to behavior problems with the children, the mother no longer wishes to have overnight visits and other visitation issues outlined in the divorce agreement.  Can the custodial parent force the non custodial parent to take the children if she does not want to?

ATTORNEY ANSWER:

It is difficult to force a parent who does not want to see their children to adhere to the parenting plan as outlined in the Court Orders. You can file a Contempt Action to try and have the Court enforce the schedule but that is quite difficult to do. There are sanctions that can be used to offset things like additional costs for day care. You should consult with an child custody attorney and I would certainly be happy to meet with you if you want a consultation. [Read more...]