Family Law FAQ
Prenuptial Agreement
Prenuptial Agreement, Antenuptial Agreement, Marriage, Asset Protection, Premarital Agreement
Q. Is there any way for a Limited Liability Company (LLC) owner of property and tangibles to protect himself in the event of marriage and divorce in Massachusetts? Also currently own a home together, both names on the deed. Also, what about bank assets?
A. I don’t know what protection you would need in the event of marriage, but to protect oneself in the event of a divorce prior to entering the marriage, a prenuptial agreement would be the way to go. Such an agreement would proscribe specifically how the assets and debts would be divided in the event of termination of marriage by either death or divorce. There are requirements to be met in order to have an enforceable prenuptial agreement, including full financial disclosure, independent legal counsel, etc., so a consultation with a family law professional is necessary to assess your situation.
Divorce – General
Divorce, Jurisdiction, Service by Publication
Q. I live in Massachusetts. I left my former state of residence in 2014. I want to get a divorce but don’t know where my soon to be ex-spouse is. How do I go about a divorce when the last known place I know he was in was my former state of residence? I have no contact with his family. We have nothing together and no kids.
A. After one year of residence in Massachusetts you can file a contested divorce, listing your spouse’s address as “parts unknown”. Depending on the county, this may be enough for issuance of the summons and to complete the service on the other spouse via publication; some counties will require a motion to do so, but it will be easily allowed.
Case Management Conference, Divorce 1B, Mandatory Waiting Period
Q. I am scheduled for a Case Management Conference in a pending 1B divorce in Massachusetts. I filed the divorce against my spouse. We only lived together for about one year before my spouse moved out. We have no children, purchased no property together and have no joint accounts. My spouse filed an answer to the divorce as required. However, I believe my spouse will not attend the Case Management Conference and has no intentions of showing up for any court hearing. My question is when I go to my Case Management Conference, if my spouse doesn’t show up, will the judge still grant my divorce? My spouse was properly served the divorce papers by a constable and she did answer the original complaint. If the judge grants my divorce (because my spouse doesn’t show up), are there any documents I will need to file on the Case Management Conference day?
A. If you filed under Massachusetts General Laws, Chapter 208, Section 1B, there is a statutory waiting period of 6 months from the date of filing before the Court may grant you a divorce (usually, in cases where one person does not appear, it is done at pretrial). Sometimes, if 6 months have already passed, you may request that a judgment of divorce is entered at the case management conference. You may try to request the matter be called to immediate trial, but chances are the Court will give your spouse until pretrial to show up. I would suggest to make your intention of calling the matter for immediate trial and to move for divorce judgment. The Court will most likely give you a pretrial date right after 6-month mark so that you can proceed.
Divorce, Adultery, Additional Defendant
Q. My soon-to-be ex has filed for divorce and changed the petition from irreconcilable differences to adultery. Does the person I had an affair with need to be named and therefore served with papers? Should they get an attorney?
A. Your paramour will have to be named in a supplemental filing and served as a third party litigant. Technically, although rarely pursued, adultery does have a criminal charge attached to it, so there may be privileges that both you and the other person involved in the affair should be aware of. Therefore, both of you should consult separate counsel.
Right to Get Divorced
Q. Do I have every right to get divorce before the immigration interview for my spouse? I had gotten married to someone that was not a U.S. citizen we once were in love after we cheated on each other that love faded. Am I doing the right thing by divorcing my spouse?
A. Although the facts as you stated them are a bit convoluted, you definitely have the right to get a divorce. Just like marriage, divorce is a personal right and, if you believe that your marriage is irretrievably broken, you have the right to file for divorce. Whether or not you are doing “the right thing” is not a legal question. Please understand that there may be consequences to your spouse relevant to the spouse’s immigration status, but legally no one can force you to stay married.
Divorce Absolute, Divorce Nisi, Waiting Period, Nisi Period
Q. Divorce: granted vs. finalized. What is the difference between a divorce being granted and a divorce being finalized? My fiancée is still legally married but in the process of filing for divorce. The divorce is not contested by her estrange husband. Will we be able to marry in September in Massachusetts?
A. If your fiancée is a Massachusetts resident and is getting divorced in Massachusetts via uncontested joint petition for divorce, the judgment of nisi will enter on the date of the hearing on their petition (pending the Court’s approval of the parties’ agreement for divorce). The Judgment of Divorce Nisi becomes absolute by operation of law (no additional hearing or application to the court is needed) after ninety (90) days expire after the entry of the judgment nisi. Marriages are not permitted during the nisi period even though for all other purposes the judgment of divorce is fully enforceable. There may be an application made to the court for marriage during the nisi period where the applicant (you) will need to show the Court a pressing reason why the waiting period should be waived. If the divorce is not via uncontested joint petition, it cannot be granted until six (6) months after the date of filing, at which time, if uncontested, the divorce of nisi enters and the 90-day nisi period begins. If the plan is for your son to be married in September of this year, 90-day period needs to expire prior to the date of the wedding. I hope this helps. Please have your son’s fiancée bring her marriage plans to the attention of her attorney or seek a consultation from a family law attorney if she is unrepresented.
Divorce Absolute
Q. Is the Certificate of Divorce Absolute my divorce date? I married June 1, 1991 and my Divorce Absolute was final June 15, 2001. Is the last date my divorce date?
A. If you received your Certificate of Divorce absolute, it should indicate the date of your divorce. The date of the divorce is NOT when you filed the action but 90 days after the court issued judgment of divorce nisi and said divorce became absolute.
Rights of a Surviving Divorced Spouse on Death
Q. My father just recently passed away, he has a pension from the state is my mother entitled to this now? They were married 12 years and neither one ever remarried.
A. This depends on a lot of different information. Who is the beneficiary on the 401k (if it is a 401k) and whether your father had a will or other estate planning document are the first things I would look at. Additionally, during their divorce it is possible that your father’s pension was divided between them in some fashion, which would make your mother entitled to portion of it.
Child Custody, Child Support
Child Custody, Best Interest of the Child, Adoption, Step Parent, Step Child
Q. I am considering divorce, have a 10 year old from a previous relationship, and question is about our 2-year-old daughter. My husband wants full custody of her, he is the bread winner (I work part time). Can he get custody because he can financially support her?
A. Unless an adoption took place during your marriage, your current spouse has no claim for custody for your 10-year-old child. While the legal custody would continue to be joint for your younger child, the custody of the 2-year-old child would need to be with the primary care taker (not the primary bread winner) and, most importantly, according to the child’s best interest. I would suggest a consultation with an attorney, during which you can address these and many other questions relevant to a divorce proceeding.
Child Custody, Unmarried Parents, Out-Of-Wedlock, Sole Legal Custody, Sole Physical Custody
Q. I am currently pregnant. The father of the baby doesn’t think the child is his but has also told me that he thinks I should give it up for adoption. He isn’t ready to have a child. Do I have to go through a long expensive court process to have sole custody of the child?
A. If the parents are unmarried when the child is born, the mother has sole legal and physical custody by default. In order for the father to establish shared legal and/or physical custody, he needs to petition the court for the same.
Modification of Child Custody, Child Safety
Q. My ex-husband has primary custody of our 3 children. I just learned that his uncle, a registered sex offender, is living in the same home with my children. He is a high risk offender that molested a young boy. I want to know if this can be used to get primary custody of my children, if not full custody.
A. The safety of your children are the number one priority for the courts. You need to get in touch with the local attorney as soon as possible and to work on a plan to have your children in the safe living environment. If their safety requires a change in custody, that should take place, but a legal action will be required. There are several documents that need to be filed with the court – a complaint for modification, a motion for temporary orders (potentially, even an ex-parte motion, without notice to your ex-husband) to immediately change the custody and there may be a prior investigation of public record on the registered sex offender required in order to support your motion.
Recording of Conversations Without Consent, Custody, Guardian Ad Litem (GAL)
Q. My boyfriend is in an ugly custody battle and, because I’ve been in a relationship with him for 5 years, I was asked to be a witness. A Guardian Ad Litem (GAL) got involved and GAL, as well as Department of Children and Families, asked to speak with me. I found out from the GAL that the mother of my boyfriend’s children has been recording video and audio of me for years when I spoke with my boyfriend’s son, drop him off or pick him up. It makes me really uncomfortable. Last year she falsely accused me of “assaulting” her. The accusation didn’t go anywhere but the fact remains she’s trying to ruin my life. How can I stop her from doing this to me?
A. Recording audio secretly is a crime in Massachusetts. How do you know she did this? See Massachusetts General Laws, Chapter 272, Section 99. Recording of conversations without consent is illegal. If this is, in fact, true, you should contact police and District Attorney’s office.
Child Support, Verbal Agreement, Child Custody, Modification
Q. Father is taking mother to court for child support because I was living with my father while he was paying child support to her. My mother is trying to get out of paying this child support back to him by saying that he owed her money from a previous court case that he never paid. Recently, my father paid $4000 for school and my parents both agreed that if my father paid all of the school costs, they would be even with their debt from court. Now my mother is saying that she doesn’t care, she will still pursue the money she said she would not pursue if my father takes her to court. Is a verbal contract good enough in this situation?
A. I am sorry that you are in the middle – and so entangled – into this legal battle between your parents that you are seeking legal advice on their behalf. I would strongly suggest that you tell each of your parents to consult an attorney regarding their rights and obligations. To answer your question regarding a verbal contract – usually, it is not enough and additional evidence of agreement (i.e., emails, texts, etc.) would be necessary. Also, until and unless a court order is changed, it remains in full force and effect – verbal agreement or not. Your best interest should always control.
Modification
Modification, Child Support, Property Division, QDRO, Material and Substantial Change in Circumstances
Q. My ex- spouse filed complaint for modification centering around our child (now age 19) graduating from vocational program, and wants her emancipated and child support to end. However, a prior judgement of January 2014 states that I am to receive the child support until our child is 21 unless at that time the child is in college, in which case the support would continue until age 23. Further, the judgment states any change in school status before age 21 does not constitute material and substantial change of circumstances to warrant child support change. My question: in the complaint for modification, my spouse wants to stop child support, but then adds many other issues like modify division of pension and to take me off the health insurance. Can the court modify all of these issues stated in my divorce decree even if the main issue does not constitute material and substantial change in circumstances?
A. In Massachusetts, the child support is always subject to modification based on changes in circumstances. Therefore, if your 19-year-old is working and is able to support herself, the child is emancipated and it is, in fact, a change in circumstances warranting change in child support. The child’s graduation from vocational school is not enough to trigger the child’s emancipation status if the child resides with you and principally depends on you for support. You can certainly point back to the prior judgment of January 2014 in your responses to your ex-spouse’s action, as well, which shows that both of you anticipated the change. Division of marital assets (including retirement assets) is not permitted to be modified, and you must look to your divorce judgment re: health insurance provision, specifically, whether said provision was merged with the judgment and remains subject to modification.
Modification of Child Support, Income, Self-Employment, Material and Substantial Change in Circumstances
Q. Can child support be modified if I am not making any more money? The mother was recently employed; previously, she was self-employed when child support was set. She is now making a lot more money but states she needs childcare so she is taking me back for a modification of the child support. I am not making any more money. I carry med/dental insurance for our child. Will my support be increased?
A. There are instances when the child support can be modified in the absence of the income change – for instance, if either party now have some extraordinary expenses related to his, her or the child’s health or care, etc. The standard will be material and substantial change in circumstances. Also, when someone is, or was, self-employed, it immediately raises questions about the income they, in fact, make as compared to that they report. These are complicated issues which you should address with a family law practitioner.
Child Support, Verbal Agreement, Child Custody, Modification
Q. Father is taking mother to court for child support because I was living with my father while he was paying child support to her. My mother is trying to get out of paying this child support back to him by saying that he owed her money from a previous court case that he never paid. Recently, my father paid $4000 for school and my parents both agreed that if my father paid all of the school costs, they would be even with their debt from court. Now my mother is saying that she doesn’t care, she will still pursue the money she said she would not pursue if my father takes her to court. Is a verbal contract good enough in this situation?
A. I am sorry that you are in the middle – and so entangled – into this legal battle between your parents that you are seeking legal advice on their behalf. I would strongly suggest that you tell each of your parents to consult an attorney regarding their rights and obligations. To answer your question regarding a verbal contract – usually, it is not enough and additional evidence of agreement (i.e., emails, texts, etc.) would be necessary. Also, until and unless a court order is changed, it remains in full force and effect – verbal agreement or not. Your best interest should always control.
Property Division
Property Division, Real Estate, Divorce
Q. Is the real estate commission deducted from the fair market value when one spouse buys out the other?
A. Generally, by agreement, you can treat it either way. However, if there is no sale currently intended and no commission is likely to be paid in the foreseeable future, it is not deducted.
Property Division, Gifts During Marriage
Q. If my father cosigns a vehicle for me, and I and my wife later get divorced, does she have any right to that vehicle?
A. It depends on some factors, but generally (absent prenuptial agreement), any property gifted to you or to your wife during the marriage would be part of marital estate and, as such, subject to equitable division in the event of a divorce.
Title to Property, Divorce, Property Division
Q. We are getting divorce, we own a house together the loan and house are in my spouse’s name, my name not on it just want to know my legal standings. My name is not on the house and feel like this was done on purpose.
A. Marital estate includes all property, regardless of whether the title is joint or in the name of one of the spouses. Assuming there is no valid prenuptial agreement, which would determine the property division, much of the division will depend on the factors, which include, but are not limited to, length of the marriage, contribution to the marital estate, both financial and non-monetary, conduct of the parties, whether the asset was acquired during the marriage with marital funds or not, etc. You need to consult with a family law attorney to get answers to all these questions and to have a better understanding what course to take in your divorce.
Property, Divorce, Separation, Eviction, Title to Property
Q. We were married for 5 years but the house was purchased in his name only because it was a specialized loan and could only be in his name. Am I entitled to anything? We recently tried to refinance in both names but interest rate was not low enough. He doesn’t want me in the house. Do I have to leave with our teenage daughter?
A. Even if you weren’t married when the home was purchased, but you contributed to its upkeep and payments, you may have a claim to it. If you were, in fact, married when you purchased it, the house is part of your marital estate and is subject to a division at a dissolution. There must be a court action filed to remove you and your daughter from this home. You need to consult a local attorney as soon as possible to determine what course of action you should take.
Calculation of Child Support, Jurisdiction, Home State
Q. If two people are divorced and have a child, what state determines the child support? Mother who has physical custody and filed for divorce live in one state and father lives in a different state.
A. This is a fairly complicated question: wherever the child resides for the most recent 6 months, that state will have jurisdiction over all questions re: care, custody and support of the child (it is called the child’s “home state”). Once the initial order is established, the laws of that state attach and will apply to the child support and child custody, even if the child moves to another state. This is a complicated issue and I would advise you to see a family law attorney as soon as possible to discuss all of these issues.
Temporary Orders
Temporary Order, Custody, Notice, Service of Process
Q. What will happen at my hearing for a temporary custody order if my ex is in rehab and his mother signed for the court notice? Does he need to be represented for the hearing to happen? We have an agreement through the courts already but he relapsed and I am adding new rules in case that were to ever happen again.
A. There may be an issue here of service since his mother does not qualify under the rules to put him on notice of the court hearing. Further, because he is currently in rehab and unavailable to appear on his behalf, the court may want to wait until he can be present and heard on your motion. The Court may act in your ex’s absence due to the fact that he is in rehab and give you the changes in custody that you seek, but only until the next date, at which time the Court will want you ex to appear and present his defenses. I strongly suggest to consult an attorney and retain one to represent you at the hearing – many details that are not in your question may make a huge difference.
Divorce, Spousal Support, Motion For Temporary Orders
Q. When you file for divorce and request immediate spousal support, how long is the process? How long would I have to wait for spousal support once divorce papers are filed? I have been married 25 years and my husband makes at least $60,000 more than me.
A. The process involves more than just analysis of length of the marriage, who makes more and by how much. Spousal Support is based on your financial need. I would suggest you see a family law attorney to analyze your specific situation. The motion for temporary orders (orders to be in effect while the divorce is pending) can be scheduled and heard as soon as the court’s schedule, usually – between 1 and 2 months after the filing of the case.
International Divorce
Divorce, Immigration
Q. I married my spouse in 2013 and he went to his back home for vacation to see his family. I then learned that he married another girl in another country. I’m shocked now. My question: does he have a right to marry two women? Is it a crime? What are the consequences of multiple marriages here?
A. It is unlawful to be married to two persons at the same time and it is, in fact, a crime (MGL c. 272, s. 15, Polygamy). Please schedule a consultation with a family law attorney in your area to determine what your rights are in this situation.
International Divorce, Residency Requirement
Q. I got married in India and have been living in MA for 8 years. Can I file divorce in US? Is there an attorney in MA that have dealt with international marriages and divorce such as myself?
A. You can get divorced in Massachusetts so long as you have met all of the residency requirements under the laws of the Commonwealth of Massachusetts. NOTE: However, you should be aware that your divorce might not be recognized in India, if you were married under the Hindu Marriage Act. In particular, there have been cases where India did not recognize foreign “no-fault” divorces.
Contempt
Contempt, Child Support, Educational Expenses
Q. Am I in contempt relative to my divorce decree? Several years ago in a Child Support Recalculation hearing, my ex-spouse prepared, presented and signed under penalty of perjury an Affidavit of Arrears stating the balance of educational expenses was $3000. I have paid the $3000. Now, I’m being held in contempt for an educational expense balance of $7000. No additional educational expenses were accrued after the $3000 statement. All other aspects of the divorce decree have been closed several years ago, and the children are emancipated. How do I “Answer” this complaint?
A. There are many factors that need to be looked at before one can answer whether or not you are in contempt. To be in contempt, you must willfully violating a clear and unequivocal court order. First, you need to look to see whether the order for you to pay the expenses (whatever expenses you are now being sued for) clearly states which expenses are to be paid. This order or judgment is referred to in Paragraph 3 of the Complaint for Contempt. Then, you have to see whether you are in violation and why (the other party requested payment, but you didn’t pay), which is the meat of the Contempt action. A contempt in a probate and family court is an action that may have some serious consequences (which you are already aware of), so I would suggest to consult with an attorney in your area.
Contempt, Failure to Pay
Q. Can I take his ex-spouse back to court for breaking our Divorce agreement? In the divorce, I left the house so that our child did not have to relocate, but the stipulation in the divorce agreement was that my ex-spouse was to pay the mortgage. The ex-spouse stopped paying the mortgage for more than a year and the house is now in foreclosure which is ruining my credit. I am now ordered to pay $400.00 per week in child support and $100.00 in alimony I am completely up to date on these payments. Now that my daughter is 13, does the support go down?
A. If there is an agreement that became an order or judgment of the court, which clearly states that your ex-spouse is to pay the mortgage, your ex-spouse is in violation if the mortgage isn’t paid. You can file a complaint for contempt, seeking her compliance. If contempt is successful, you may be able to recover your costs, including attorney’s fees, in pursuing it.
As to the chance in child support, you need to file a complaint for modification if you believe there was a significant and material change in circumstances. Child support is calculated based on the parents’ respective incomes.