Preparing a Will 

A Will designates exactly how you want your assets to be distributed. If you die without a will, the state law and the courts will designate how your assets are to be distributed and who will be the guardian of your minor children. These are decisions that most people would prefer to make themselves. That is why proper estate planning is essential for everyone. 
When choosing an Executor and Guardian, it is important to also choose an alternative to each in case your first choice is unable or unwilling to fulfill the position. To avoid any unwillingness, it is important discuss your choices of Executor, Trustee and Guardian with the individuals you choose to designate. Make sure they are comfortable and willing to serve. 

Durable Power of Attorney 

A Durable Power of Attorney is essential so that your financial affairs do not go unattended if you are ill or incapacitated for any reason. Without a valid Durable Power of Attorney, no one else is automatically authorized to handle your finances. Typically, your financial affairs would have to be managed by a guardian appointed by the probate court, a much more expensive and complex procedure than getting a durable power of attorney drafted before you become incapacitated.

A power of attorney can give your “agent” whatever degree of power you authorize: either specific, limited powers or broad powers. A durable power of attorney remains in effect even if you (“the principle”) become incompetent and remains valid even during a prolonged debilitating illness or mental impairment.

Health Care Proxy 

In some states it is called a “living will” but in Massachusetts, statute has created the “Health Care Proxy” for the same purpose. The durable power of attorney permits you to appoint a trustworthy individual to handle your financial matters. There is a separate document that designates someone to carry out your health care wishes and make health decisions for you when you are unable to do so. This document lets you appoint a trusted relative or friend to make decisions about your medical care in the event that you are unable to make or communicate them yourself.

It is particularly important to discuss you health care wishes with the person you designate to make those decisions. Putting those specific wishes in writing is also helpful in ensuring your wishes are properly carried out. 

Prepare a Homestead

HEADING Role of a Real Estate Attorney Should be changed to " Divorce & Family Law"

Attorney Forghany concentrates in a wide range of family law matters, including divorce, separation, paternity, child custody and visitation, child support collection and enforcement and modification of existing orders. Attorney Forghany believes in delivering high quality and professional legal advice and does so in a dignified and cost-effective manner. She is also dedicated to maintaining constant and regular communications with her clients in order to keep them involved and informed during the relationship.

Residency Requirement

One party must have been domiciled continuously in Connecticut for a period of 12 months prior to the date that the Court issues the judgment. You may file for divorce without meeting the 12-month residency requirement as long as you meet the requirement on the date of the divorce. There are other exceptions as well: the reason for the divorce arose after you and your spouse moved to Connecticut, if you were Connecticut residents before going on duty which took you out of state, or if you were previously a resident of Connecticut and moved back to Connecticut with the intent of making Connecticut your permanent residence.

Waiting Period

The waiting period is 90 days from the "Return Date" (official starting date of your case), but additional time is needed for the marshal to make service and for the served papers to be returned to the court prior to the Return Date. Actual time is about 4 months under the best of all circumstances. All deadlines and statutory periods are measured from the Return Date.

Costs

• Court Filing Fee: $225.00
• Sheriff's Fee: $30-50
• Parenting Education Class: $125.00 per party
• Certified Copy of Decree: $25.00

Case Management Program

There is a mandatory case management conference 90 days from the "return date" (the official starting date of the case). If the parties file a case management agreement stating that all issues are resolved, the parties can appear and request that the divorce be granted on the Case Management Date. If a case is contested, deadlines for completing discovery and financial disclosure will be assigned by the court. Under the new program, it is theoretically possible to have a divorce granted on the 90th day. You do not go to court if you file the Case Management Report prior to the Case Management Date.

Automatic Restraining Orders

Automatic restraining orders are entered upon the issuance of a complaint for divorce. Read the full text of the official orders. The orders are binding upon the plaintiff (person who files for the divorce) at the time the papers are issued and are binding on the defendant spouse at the time the papers are served. The purpose of the automatic orders is to provide a cooling off period to maintain the status quo and to deter the parties from raiding assets or taking other steps to disadvantage the other spouse at the outset of a divorce.  The secondary purpose of the automatic orders is to save the parties the expense of filing motions for restraining orders and certain discovery motions at the beginning of each case. For example, the automatic orders restrain (prohibit) the parties from:

• withdrawing large amounts of funds,

• incurring major expenses,

• selling or mortgaging property,

• changing life insurance beneficiaries

• relocating children

The Court has the discretion to modify any of the orders. Modification is applied for by filing a motion stating the grounds for modification.

Division of Marital Property

Connecticut is referred to as an "all property equitable distribution state." In Connecticut, the Court has the power to "assign to either the husband or wife all or any part of the estate of the other." Conn. Gen. Stats. § 46b-81. Any property, therefore, regardless of when or how acquired, can be re-distributed by the Court. See, e.g. North v. North, 183 Conn. 35 (1981) (all property, including pre-marital or inherited property, is subject to division by the court). The statute "does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad power [to allocate]." Lopiano v. Lopiano, 247 Conn. 356, 364 (1998).

In making the allocation, the factors the Court will consider are: the length of the marriage, the causes of the dissolution or separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, special needs, future earning capacity and prospect for future acquisition of capital assets and income. Conn. Gen. Stat. § 46b-81.

The court also considers the contribution of each of the parties in the acquisition, preservation or appreciation of the assets. Conn. Gen. Stat. § 46b-81. Homemaking is considered a valuable contribution to the acquisition and appreciation of assets.

Property acquired prior to the marriage is often, but not always, considered the separate property of the person who acquired it. Appreciations or additions to that property may be considered marital acquisitions.

The Marital Residence

The home that the parties live in prior to divorce is often referred to as the marital residence. Like all property acquired during the marriage, both parties have an interest in it, regardless of how the property was acquired or is titled. Leaving the marital residence prior to or during the divorce does not constitute a legal abandonment of your property interest in the home. Because couples are afraid that moving out will somehow prejudice their interest in the home, they often live together while the divorce is pending. The tension that results can be very damaging to children.

Because of how the Automatic Orders are written, if you are not residing in the home when the divorce papers are served, you do not have an automatic right to remain in the home after the service of the divorce papers. "If the parties are living together on the date of service of these orders, neither party may deny the other party use of the current primary residence ... without order of a judicial authority." Once the case starts, however, either party may file a motion for use of the home and the judge will make a decision as to who should occupy the home until the case is decided. "The court may also award exclusive use of the family home . . . to either of the parties as is just and equitable without regard to the respective interests of the parties in the property." Conn. Gen. Stats. § 46b-83. If the case has not officially started (i.e. it is before the Return Day) a party can file a motion and an order to show cause to bring the person denying access to the family home into court.

Stock Options

Vested and unvested stock options can be part of the marital estate and can be distributed by the Court at the time of dissolution. Bornemann v. Bornemann, 245 Conn. 508 (1998). A discussion of how the marital portion ("coverture factor") of unvested options can be calculated is discussed in Wendt v. Wendt, 59 Conn. App. 656, (Sep 05, 2000) (NO. 18388). Compare Hopfer v. Hopfer, 59, Conn. App. 452 (2000) (wife not entitled to portion of unvested options which were granted after the divorce was filed and shortly before the divorce decree was issued).

The general rules is that the marital estate is valued at the time of the issuance of the decree. Exceptions can be found In the Wendt and several other cases where the court looked at the circumstances of the marriage and separation and valued certain assets at the time of the separation. 

Personal injury awards

Settlements, judgments and workers' compensation payments can be treated as marital property and distributed by the court to either party. Lopiano v. Lopiano, 247 Conn. 356 (1998). The court looks at multiple factors when deciding whether an award be shared with a spouse. 

Inheritances and Gifts

The court has jurisdiction to allocate Inheritances and gifts that have been received to either party regardless of the source. The court looks at multiple factors when deciding whether an inheritance or gifts should be shared with a spouse. When the money was received, how it was used during the marriage, whether it was kept separate and what it was received for.

The concept of "property" includes a presently existing, enforceable right to receive income in the future. Property does not include those interests, however, that might be speculative or which constitute a "mere expectancy." Rubin v. Rubin, 204 Conn. 224, 230-31, 527 A.2d 1184 (1987) (husband's status as a possible residuary beneficiary under revocable trust and will of his mother was a "mere expectancy" and his possible future inheritance should not have been the subject of a contingent order of the court, nor was evidence of the estate plan admissible at trial). 

A medical degree is not marital property which may be divided by the court in a dissolution of marriage. Simmons v. Simmons, 244 Conn. 158 (1998)

Once ordered by a Court, marital property distributions cannot be modified.

Finality of Property Settlements

Property settlements in divorce judgments can only be reopened for a limited time after they entered and only on specific grounds (i.e. fraud). Once entered, property settlements are very difficult to change.

Retirement Income

Pensions and 401K's.

Defined contribution plans (401-K's, i.e.) and defined benefit plans (pensions, i.e.) are considered marital property and are subject to assignment by the Court. See, e.g. Stamp v. Visconti, 51 Conn. App. 84 (1998) (wife's 401K should have been included as a marital asset even though completely funded by her employer). Qualified Domestic Relations Orders ("QDRO's") are typically ordered by the court in connection with the final decree, and when issued, requires the plan administrator to transfer all or part of a plan's interest from one spouse to another. If transfers are made under a QDRO, they are not treated like withdrawals and therefore are not subject to a penalty. See a helpful article on types of retirement assets and QDROS posted on a resource site for accountants.

In Bender v. Bender, 258 Conn. 141 (2001), the Supreme Court ruled that unvested pensions are marital property and can be subject to division.

Social Security

You can collect social security based upon your divorced spouse's income if (1) you were married for at least 10 years; (2) you have been divorced for two years; and (3) your divorced spouse is eligible to receive benefits. The two-year waiting period does not apply if the divorced spouse was receiving benefits prior to the divorce. There is no impact on the benefits of the spouse against whose account the divorced spouse collects benefits. The right to spousal benefits is lost if you remarry. See Social Security FAQ from the Nolo Press. See Section 216 of the Social Security Act, 42 U.S.C. 416.

Alimony

Alimony is available to either party but neither party is absolutely entitled to receive alimony.  The basis for awarding alimony is not to punish a guilty spouse but to continue a duty to support the other. 

Beware of formulas!

Judges award alimony based upon all the facts and circumstances of the parties and do not rely upon formulas or rules of thumb. Many of the common formulas that parties hear about have been repudiated by their authors. The factors the court will consider are: the length of the marriage, the causes for the divorce, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, needs of the parties, and property distribution. Conn. Gen. Stats. § 46b-82. When children are involved, the court will also consider the desirability of the custodial parent's securing employment.

The options for alimony are: (1) none, (2) $1.00 per year, (3) lump-sum alimony or (4) periodic alimony. If the divorce judgment provides for $1.00 per year, that figure give the court the authority to modify the amount in the future, if the legal requirements for modification are met. "Rehabilitative alimony" is transitional support awarded to one of the spouses during a period of education or training necessary to achieve self-sufficiency or make up for time that the spouse has been withdrawn from the workplace.

Because alimony is deductible to the party who pays it, it is a device to shift the tax burden to the spouse who is likely in a lower tax bracket. Alimony is therefore an important divorce financial planning device.

Modifiability

Alimony can also be made non-modifiable as to amount or duration by agreement of the parties. If the agreement or decree contains no prohibition precluding modification, the court will have the ability to to modify in the future based upon a substantial change in circumstances.

Waiver of Alimony

If the parties waive their right to alimony, or if the court's judgment contains no provision for alimony, neither party will be able to go back into court at any time in the future to request that alimony be ordered, even if there is a drastic change in circumstances that was not foreseeable at the time of the divorce. Unless there is some kind of alimony provision, the door will be closed forever.

Effect of Cohabitation on the Payment of Alimony

In DeMaria v. DeMaria, 247 Conn. 715 (Feb. 16, 1999), the Supreme Court (Katz, J.) ruled that a provision to terminate alimony in the event of a recipient's cohabitation must be interpreted in conjunction with the requirements of Conn. Gen. Stats. Section 46b-86(b). The statute allows the court to modify an alimony order on grounds that the recipient is "living with another person" only if the new living arrangement causes a change of circumstances so as to alter the financial needs of that party. The Supreme Court ruled that a trial court must evaluate the financial impact of the living arrangement regardless of the terms of the separation agreement and decree. A party seeking modification upon the ground of cohabitation must therefore plead and prove "altered financial needs."

Link 2 Child Custody & Child Support

Child Support

Child support is calculated using the Connecticut Child Support Guidelines (CSG). Conn. Gen. Stat. §46b-84 (Aug. 1999). Under the guidelines, the amount of total support is calculated and then each parent's portion of the total support is calculated pro rata according to their respective incomes. The Guidelines provide that judges have the discretion to deviate from the guideline amounts in certain specified situations. For instance, the Court may take into consideration a) the educational needs of the parents; b) the needs of other children supported by the non-custodial parent; c) extraordinary visitation expenses; and d) whether a deviation should be allowed due to shared or split custody situations.

The Guidelines provide that the parents shall also share un-reimbursed medical expenses and work-related day care costs. These expenses are shared pro rata according to income after adding in the child support paid to the receiving parent.

New Spouse or Domestic Partner's Income.

The guidelines provide that the court cannot consider a new partner's income, but can consider a new spouse's contributions or gifts as a deviation criteria, "if it is found that the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts." The authors of the Guidelines intended to incorporate the holding of the Supreme Court's March 1998 decision in Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998). In Unkelbach, the court ruled that a spouse or domestic partner's contributions toward living expenses could be taken into consideration by the court. Under the Unkelbach approach, the domestic partner's income is therefore not included in the calculations, but the partner's contributions to living expenses would be treated as gifts.

Other Reasons to Deviate from the Guidelines. The court must articulate a specific basis for deviation based upon the guidelines; for example, other assets available to a parent, earning capacity, extraordinary expenses for the care of a child, extraordinary parental expenses (significant visitation, job or medical medical expenses), needs of a parents other dependents, coordination of total family support (division of assets, alimony and tax planning considerations). 

Child Support and Shared and Split Custody

Under the Connecticut Child Support Guidelines, there is no presumption that shared custody will either reduce or eliminate the need for child support. Shared custody is one of the deviation criteria recognized by the Child Support Guidelines. The guidelines provide that deviation is warranted only when (1) the arrangement substantially reduces the custodial parent's expenses or substantially increases the non-custodial parent's expenses for the child and (2) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation. "Shared physical custody" is defined as a situation where the non-custodial parent exercises care and control of the child "for periods substantially in excess of a normal visitation schedule."

A common misunderstanding is that parents do not have to pay child support in shared parenting situations. Shared custody means that both parents share all parenting responsibilities, including financial responsibilities. Each parent is therefore required to provide a portion of all the housing, food, clothing, education, medical, and social expenses of the child. This can be accomplished, for example, by setting out specifically the terms of the shared financial responsibilities in the Judgment (decree) or by pegging one parent's share of the expenses to the Child Support Guidelines. Whether the shared financial arrangement between the parties is flexible or fixed will depend on the particular circumstances of the parties and how well they work together on parenting and financial issues.

Post majority support and college education

• Prior to October 1, 2002: The court has no authority to order child support past the age of 19. If the parties provide for post-majority support (i.e. college expenses) in their written separation agreement, the court will enforce that agreement. For orders entered after October 1, 2001, Judges have the authority to modify post-majority support agreements like any other order of child support.
   

• After October 1, 2002: The new law, "Educational Support Orders." Conn. Gen. Stats. 46b-56c, gives Judges the authority to order that parents pay as child support, college education costs. The bill would apply to orders entered by the court on or after October 1.

   

  The bill:
   

  • requires that the court makes a determination that but for the divorce, the family would most likely have supported the college education of the child,

  • requires that the court take in consideration all the circumstances of the parents and the child before making an order,

  • requires that the amount ordered is capped at the "UConn equivalency"; namely, tuition, room and board and costs of a Connecticut resident at the University of Connecticut,

  • requires the order shall terminate on the child's 23rd birthday,
  • requires that the child meet requirements in terms of choice of study, academic standing and cooperation with parents,
  • allows for payments to be made directly to the school, parent, or child
  • allows for modification
  • provides that the child does not have the right to sue his parents for educational support based upon the statute,
  • does not provide for graduate or post-graduate degrees
  • applies to cases in which an initial order for child support is entered after Oct. 1, 2002

Wage Execution/Garnishment

Conn. Gen. Stats. 52-362(b) makes wage executions (an automatic deduction from wages by the person's employer) mandatory in every case in which the court makes financial orders. The provision may be waived if the parties agree in writing that the court may order a "contingent" (backup) wage execution. With a contingent order, the person receiving support can get a wage execution if the person paying support fails to pay or to make payments on time.

Earning Capacity

In making a determination as to alimony and child support, a court has the discretion to make its orders based upon the "earning capacity" as opposed to the actual earnings of a party. This prevents persons involved in divorce or child support actions from becoming deliberately unemployed or  under-employed in order to affect the outcome of the court decision.

Relocation

Relocation of a child by one parent is an especially difficult problem for parties and courts. Read a summary and  analysis of the Connecticut Supreme Court's Ireland v. Ireland decision.

Parenting Education

Participation in a parenting education program is required under Conn. Gen. Stats. §46b-69b. Parenting education involves attending a program of classes by a provider approved by the Court. Brochures and forms are available in the clerk's office of the J.D. (county) courthouses and are also available on line. Link to Family Court Forms. The course costs $100 per parent and consists of six hours of classes at the office of the approved provider. The parties must bring the sign certificates of completion with them to court on the day that they request the court grant the divorce. Most parents report that the classes are very beneficial and are especially helpful if taken at the beginning of the divorce. If you have children, take a minute to read Ten Tips for Divorcing Parents.

Visitation by Grandparents and Other Unrelated Third Parties

Under Connecticut law, persons with significant ties to  children have visitation rights. Link to article, Visitation by Grandparents and Others - Non-traditional Family Issues by Sue Smith.  Recently, the Connecticut Supreme Court ruled that grandparents and others must demonstrate that they have a "parent-like" relationship with the child and that the child will suffer harm if visitation is denied. This is a heavy burden of proof and it will have a significant impact on the ability of third-parties to obtain visitation orders.

Modification of Agreements and Orders

The Court always retains jurisdiction over issues relating to the custody and well-being of minor children. Any orders relating to child support can be modified upon a showing of a "substantial change in circumstances." Conn. Gen. Stat. §46b-86. When reviewing child support orders, the courts use a benchmark of a 15% deviation from the guidelines to determine whether a change in circumstances qualifies as "substantial".

As to alimony, the parties can restrict the right of the Court to awards by making them "non-modifiable" as to either amount or duration of payments (or both).

Once marital property is distributed, it is very difficult to modify an agreement or order and obtain a redistribution. Property settlements between parties are usually final as of the date of the divorce and can only be revisited if there are specific special circumstances (i.e. fraud, duress, mutual mistake) that are brought to the court's attention within a specific time period.

Contempt

A party can be found to be "in contempt" for willfully failing to comply with an order of the court. A Motion for Contempt is the mechanism by which a party raises the other party's non-compliance to the court and the mechanism by which the family court enforces its orders. A party found to be in contempt can be required to pay the other party's attorneys' fees.   

"Self Help" In Eldridge v. Eldridge, 244 Conn. 523 (1998) the Supreme Court (Justice Katz) demonstrated the degree to which it disfavors "self help". In Eldridge the husband discovered years after the fact that his wife was earning income that entitled him to an offset from his alimony payments. Figuring that he had actually overpaid his wife, he stopped making payments. His wife filed a motion for contempt. Even though he was entitled to a $10,000 credit, the Supreme Court found that it was appropriate to find him in contempt because he did not receive an order from the court before reducing or suspending payments.

In Sablosky v. Sablosky, 258 Conn. 8 (2001), the Supreme Court ruled that a party who fails to comply with a judgment, even though a provision may be deemed ambiguous, can be held in contempt of court.

Tax Considerations

Link to IRS Publication. Link to PDF File Publication 504 "Divorced or Separated Individuals."

Filing Status:

Unless the parties are married on the last day of the tax year (i.e. December 31st), they are not eligible to file a joint tax return for that tax year. If the parties are married on the last day of the tax year, they are eligible to file married (jointly) or married (singly).

Alimony is treated as taxable income for the receiving spouse and is a deductible expense for the payor spouse. Link to IRC Section 71.

Exemptions and Deductions for Children. 

The dependent child exemption is assignable from the primary custodian of the child if the custodial parent signs a Form 8332 (release of exemption). Link to IRS Publication 503: Dependent Child Exemption.  The child care (i.e. day care) credit is not usually assignable and must stay with the parent with whom the child primarily resides. A separate tax credit is the Child Tax Credit, which can be claimed by anyone who is entitled to "claim a child as a dependent."

Property Transfers. Transfers of property (including the marital residence) from one spouse to the other "incident to a divorce" are generally non-taxable events. Spousal transfers incident to divorce are treated like gifts so the spouse receiving the property receives the "adjusted basis" (baseline valuation) of the spouse transferring the property for the purpose of figuring gains and losses in the future. IRC Section 1041.  Link to IRS Publication 504: Transfers Between Spouses.

Sale of Principal Residence. Pursuant to the Tax Reform Act of 1997, there is a $250,000 exclusion of capital gain per spouse ($500,000 per couple) on a principal residence sold after May 6, 1997 provided that you resided for the residence for 2 out of the last 5 years (or less if you rolled in the gain from a prior principal residence). This is not a "one time" exclusion as was provided under prior law; you may apply the exclusion to one home sale in a two-year time period.  Link to IRS Publication 523 Sale of Your Home, Excluding the Gain. 

Spouses have individual, not joint, interest in tax refunds. Unless otherwise agreed to, the overpayment is allocated according to the amount of tax paid by each spouse. IRS Revenue Ruling 74-611.

"Innocent spouse" rules allow spouses to apply to the IRS to disengage from joint tax returns obtain protection from joint liability (civil and criminal) if they suspect the other spouse  has not been honest in filing in joint returns. The Innocent Spouse Rule of the IRS Restructuring and Revision Act of 1998 provides that where:

• The parties have filed a joint return;

• That as a result of the gross misstatements of one spouse, there is an understatement of tax due;

• The innocent spouse can demonstrate that he or she signed the return not knowing about the understatement;

• It would be inequitable to hold the innocent spouse liable for the deficiency taking all the circumstances into consideration.

There are more detailed explanations as to what types of misrepresentations and what constitutes an understatement contained in the rules. There are time limitations for filing with the IRS for innocent spouse protection. Link to IRS Publication 971: Guidelines (Acrobat pdf file). Link to an article describing the new rules. 

Mediation only works if the couple does the following:

• Participates in the process freely and voluntarily;

• Makes full and complete financial disclosure;

• Believes with confidence that they have or will receive full financial disclosure from the other spouse; and

• Makes a good faith effort to reach an agreement.

Although there are many benefits to having reached an agreement through mediation, the following is a list of some of the benefits of using mediation for your divorce: 

• Significant cost savings; 

• Less adversarial; 

• Mediation insures that you are fully informed about your legal and financial options and the consequences of each decision;

• Achieve settlement in less time and with less stress and animosity than with a litigated divorce; 

• Couples retain greater control over their decisions;

• Less painful experience for the couple and any children involved since the emotional turmoil of a litigated divorce is avoided; 

Mediated settlements usually last longer and work better because the couple has more of a stake in an agreement that they worked out themselves.

How long does divorce mediation take? 

Since all divorcing couples are unique, the amount of time needed to reach an agreement varies based upon the level of conflict, the number of issues and the complexity of the family's finances. The length of time, however, is determined by the divorcing individuals, rather than the Family and Probate Court, which does not intervene in this process. 

How much does divorce mediation cost? 

Most couples share the cost of their mediation. The costs are based on a per hour charge, which is specific to each mediator. The hourly rate is the fee for both of you, and applies to the time focused on your case, including but not limited to time spent in meetings, on the telephone, and in drafting agreements and other documents. Our clients are requested to deposit a retainer at the beginning of their divorce mediation. The retainer is deposited in a separate account and applied against billed time and expenses. After the mediation ends the remaining balance, if any, from the retainer is refunded.

When Should We Start Mediation?

At any stage of your divorce proceeding, you may decide that divorce mediation may be helpful in reaching an agreement. I recommend that you start divorce mediation prior to your separation so that the mediator may help you make good decisions from the beginning of your divorce proceeding and avoid any needless conflicts and mistakes.

Is There a Risk in Using Mediation?

Since mediation is a voluntary process, you do not give up any rights or settlement options by using mediation and you are always free to pursue other legal remedies, such as seeking the advice of an attorney and/or filing with the Probate and Family Court. 

Frequently Asked Questions in Divorce and Family Law

Can I get divorced in Massachusetts?

In order to be eligible to get divorced in Massachusetts, either the breakdown of the marriage must have occurred in Massachusetts and one spouse stills resides in Massachusetts or the filing spouse resided in Massachusetts for one year prior to filing for divorce. 

Can I get a divorce if my spouse doesn't want it?

Yes, your spouse cannot prevent you from obtaining a divorce. Unfortunately, the divorce process may be longer and more expensive if your spouse is uncooperative.

How much does a typical divorce cost?

Every case is different and has unique factors that must be considered. The costs are based on a per hour charge, which is specific to each attorney. During our initial consultation I will provide a reasonable estimate of the cost and fees associated with your case and will request an initial retainer. Please note that no attorney can guarantee what the total legal fees and costs will be in a case.

What is a "retainer" and how much of a retainer is required?

A "retainer" is an initial payment made by the client to the attorney at the time the client hires the attorney. The retainer is held in an account separate from the attorney's own bank account. The attorney will bill the client for the work done on the client's case at an hourly rate. When a bill is sent to the client, the money is then withdrawn from the retainer to pay for the legal fees and costs incurred. 
The size of retainers required by our firm varies, as it depends on the level of complexity of each case. After our initial consultation, I will have a better understanding of your case and the size of the retainer needed to retain my services. 

What is meant by a "no-fault divorce"?

In Massachusetts, a "no-fault divorce" is a divorce based upon an "irretrievable breakdown of the marriage", which is the most common grounds for divorce. 

What is meant by "grounds for divorce"? 

A "ground" for divorce is a "reason" for divorce, which is sometimes referred to as a fault divorce. Although a divorce may be granted on different grounds, fault divorces are rare. The most usual fault grounds are cruel and abusive treatment and adultery.

What is an uncontested case?

A divorce case in which both parties agree on all major matters and there are no disputes over the legal issues. Both parties are able to reach an agreement, are ready for the divorce to be finalized and typically needs an attorney to draft a separation agreement to be entered into court.

What is a contested case? 

A divorce case becomes contested as soon as the complaint for divorce or the summons is filed in court. The case remains contested until all disputes are resolved and the parties reach a settlement. 

If both parties reach an agreement on all issues do they need an attorney? 

Even if both parties have an uncontested divorce and reach agreement on all issues, it is still recommended that each party hire an attorney to review any and all documents or draft the separation agreement to ensure that your rights and interests are fully protected and the agreement is fair and reasonable. It is also important to keep in mind that ultimately your agreement will be entered in Court and the Judge must then determine whether the agreement is valid and enforceable, which essentially means that the agreement must be fair and reasonable to both parties. 

What is Legal Custody of children as opposed to Physical Custody?

Legal custody is the legal authority to make major decisions concerning the child(ren), including but not limited to education, health, religious upbringing and the child(ren)'s general welfare. Physical custody refers to where the child primarily lives. These custody arrangements can be sole or shared. 

Can custody arrangements, child support or visitation ever be changed after the divorce? 

Yes, child related issues, such as custody arrangements, child support and/or parenting plan is subject to modification where there has been a "material change in circumstances". The party seeking any changes to the existing Divorce Judgment must file a Complaint for Modification.

Who has to pay child support and how is it amount calculated?

Both parents have a responsibility to support their children. Massachusetts has guidelines for determining the amount of support that should be provided for the child(ren). The guidelines are based on a percentage of the non-custodial parent's gross income. This percentage is based on the number and age of the child(ren). The child support base order then takes into consideration the custodial parent's income. The child support order is also adjusted for the cost of health insurance and cost of day care, if any. 

Is child support taxable? 

No, it is neither taxable to the receiving parent (custodial parent) nor deductible to the paying parent (non-custodial parent).

Who is entitled to receive alimony? 

"Alimony" is money paid by one spouse to the other and is sometimes referred to as "spousal support." Alimony may be awarded to either spouse for their support and is based on two factors: (1) the need of one of the spouses to receive spousal support; and (2) the ability of the other to pay it. In addition to these factors, the court also considers the same factors listed below in dividing the martial assets. 

Is alimony taxable? 

Yes, it is taxable to the receiving spouse and deductible to the payor's spouse.

What does the court consider in deciding the division of the marital assets?

The following factors are taken into consideration by the Court in dividing the marital assets:

1. Length of Marriage;
2. Conduct of the Parties during Marriage;
3. Age of the Parties;
4. Health of the Parties;
5. Station of the Parties;
6. Occupation of the Parties;
7. Amount of Income of the Parties;
8. Sources of Income of the Parties;
9. Vocational Skills of the Parties;
10. Employability of the Parties;
11. Estate of the Parties;
12. Liabilities of the Parties;
13. Needs of the Parties;
14. Opportunity of the Parties to acquire Future Capital Assets and Income;
15. Contribution of the Parties in the Acquisition, Preservation and Appreciation in Value of their Estate;
16. Contribution of the Parties as a Homemaker to the Family Unit; and
17. Present and future needs of the dependent Children.

Can you represent both me and my spouse?

Checklist for our first consultation:

Our first consultation will be most productive and cost efficient if you bring yours and your spouse's financial and legal records. The financial documents that you should collect and bring with you to our first consultation include:

• Tax returns for the past three (3) years;
• Most recent statements for all bank accounts;
• Most recent statement for all investments, securities, stocks, and bonds; 
• Most recent statements for all retirement accounts;
• Most recent statement reflecting any and all debts and liabilities, including but not limited to credit cards, mortgage and auto loans; and
• Documents reflecting both of your incomes.