Family Law & Divorce Questions

Will I be entitled to anything when we divorce?

Additional Info:  We have been married for 6 months and I realize it was a mistake and want a divorce. We got married because I am pregnant with his child. We rent an apartment in Lowell. He has some money in savings, I do not.

Attorney Answer:

Once the child is born, you will be entitled to child support assuming he earns more than you and you are the primary custodial parent of the child.  With respect to asset division, this is a short term marriage, so it is likely that the Court would look to put the parties in the financial situation they were in before the marriage (in other words you each keep what you have).  That being said, if you need to move and he has more in assets and earnings, it is possible you could receive some money to assist with your move.

Can my ex prevent me from moving out of the country with our daughter?

Additional Information:

My ex and I have a 6 year old daughter.  He sees her every other weekend and occasionally during the week.  We live in Acton, MA but I have met someone who lives outside of the US and we are getting married this year.  I am also pregnant with his child.   I want to move with my daughter to be near him.  What are my legal responsibilities in this situation?  I’d still like my daughter to be able to see her biological father, but obviously it’s not going to be as frequent and can he prevent us from moving?

ATTORNEY ANSWER:

The short answer to whether or not you can be prevented is that it depends on what the current Court Orders state and the nature of your relationship between your ex and the child.  If you were married to the father of your daughter, you will absolutely have to file a Complaint for Modification seeking permission to “remove” the child from the Commonwealth for residency purposes.  There is strong case law that outlines the factors that are considered by the Court in determining whether or not to permit the removal.  The fact that you are pregnant and engaged to be married may or may not be sufficient grounds to justify the granting of the relief you’re seeking.  The Court will look at the advantage to you and the child as well as what is in the best interests of the child.  The closeness of your daughter’s relationship to her biological father will play a significant factor as well.  The exception to the above would be if your ex agreed to the removal in writing.  I would strongly suggest that you consult with a family law attorney as soon as possible.  [Read more…]

Who has visitation rights?

Recently, many states have passed laws that give grandparents certain visitation rights with a child after a divorce or after the death of the child’s parent.

Predictably, this has given rise to questions about whether this right should be extended to other close relatives, such as aunts, uncles and cousins.

The issue came up recently in Minnesota, when a woman asked for visitation rights with her niece – the daughter of her recently deceased identical twin sister.

The woman argued that since Minnesota has a law that gives visitation rights to grandparents, it only made sense to include other family members as well.

But the Minnesota Supreme Court said that the law was to benefit grandparents and shouldn’t be extended to other relatives – except perhaps in unusual cases where another relative had previously been acting in place of the child’s parents.

Can you change your children’s name after divorce?

After a couple divorced, the wife asked a court to change their two children’s last name to her maiden name. (The children had been given the husband’s last name at birth.)

The judge agreed, saying that since the mother was the primary residential parent, it should be presumed that she was acting in the children’s best interests, and her decision should be respected.

But the father appealed, and a higher court sided with him.

The appeals court said that this result might make sense in the case of a child who was born out of wedlock. For instance, if a child were born as a result of a momentary physical relationship between a couple, or during a very brief relationship, then the parent who later assumed responsibility for the child might have a right to choose the most appropriate name.

However, where children are the product of a marriage, and were named by a “marital partnership” with the intent that their names be permanent, one parent can’t simply reverse that decision without the other parent’s consent, the court said.

Will I be responsible for half of my wife’s school loan when we divorce?

Additional Information:

My wife took out a loan so she could start her own business.   She had hoped to apply earnings toward the mortgage on our North Reading home, and stuff for the kids.  We are now getting a divorce and besides writing a business plan, she hasn’t launched her business.  Will I be liable for half of the loan?

ATTORNEY ANSWER:

The answer is maybe.  In terms of the divorce itself, if you are not getting an interest in the business, it would likely not be considered equitable for you to be responsible for the loan.  The problem, however, is that the lender is not going to let you off the hook merely because you were divorced if you co-signed for the loan.  Any settlement reached should include a provision that your wife has a set amount of time to remove you from the loan by either assuming the loan or obtaining a new loan to pay off or refinance the original loan.  [Read more…]

When we divorce, will my husband be entitled to half of a gift check?

Additional Information:

My husband and I were both in our 40s when we got married, and having an elaborate wedding didn’t seem right, so we eloped. My parents gave me a gift check which we then put toward a house we bought together in North Andover. We are now getting a divorce.  Will my husband get half of this asset?

ATTORNEY ANSWER:

This is a difficult question to answer with the information provided.  Without knowing the length of the marriage, equity in the house, amount of the gift, other assets involved, amount of liabilities and other pertinent issues, it is impossible to answer.  Massachusetts law provides for an equitable division of the marital estate in a divorce.  While that is often a 50/50 split, it is not required.  If you can provide more information I would be happy to answer the question. [Read more…]

What are the requirements for an annulment in MA?

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…]

In MA, can an order for child support be modified without going to court?

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…]

Can my wife get custody of our son?

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…]

Can I remove my ex from my health insurance?

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…]