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FAQ’S

Gernal Divorce Faq's

Is there anything I should immediately do if I think I may need a divorce?

Gather as much financial information about your spouse as possible (paystubs, bank statements, tax returns, mortgage info, retirement and investment account info, etc.), keep a log of significant events that you may need to accurately recount later, and consult an experienced family law attorney as soon as possible. Some preparation and putting a reliable plan in place now can save you money and aggravation later,

What’s the divorce process?

A complaint is filed, the other party is served with a summons and a copy of the complaint, and the case begins. If an issue requires immediate attention (i.e. child custody/visitation/support or alimony), the parties may go to court for temporary orders. During the next phase, information – usually financial – is exchanged between the parties and there are negotiations. If the case is resolved, an agreement is signed and the divorce finalized. If any issues are unresolved, the case proceeds to trial.

How should I search for an attorney?

This decision could mean the difference between walking away from a marriage with a favorable arrangement and financial stability or struggling for years to come. Use the internet to research attorneys: their reviews, qualifications, and past client experiences. Ask people you trust for recommendations. And hire an attorney that focuses on divorce practice

Children

How does child custody work?

There are two types. Legal custody determines which parent makes the major decisions for a child: health care, schooling, religion, etc. It’s generally shared between the parents unless there’s a significant issue with one of the parents or there’s a complete breakdown in communication that would negatively impact the child. Physical custody goes to the parent with whom the child lives. There may be sole or shared custody depending on the circumstances.

How does child support work?

The non-custodial parent generally pays child support to the custodial parent based on the MA Child Support Guidelines, which uses a formula that mainly considers the gross incomes of the parties and allows for certain deductions such as health/dental insurance, work-related child care costs, and other support orders.

Can a parent take a child out of state without consent?

Generally, a parent cannot permanently remove a child from the home state without either a court order or consent of the other parent. Cases in which a parent wants to permanently move out of state with the children are called “removal” cases, and there is a specific analysis used by the court to address the issue.

Property and Finance

How is property divided in a divorce?
What happens to retirement funds in a divorce?

Retirement funds, like all marital property, is subject to division in MA. The principle that determines how the funds are divided is called “equitable distribution,” which essentially means the court aims to divide the properly “fairly,” which does not necessarily mean equally. In some cases, the marital property is divided equally, but in others, one party is awarded more than the other. There are a number of factors involved in the property division analysis. Once it’s determined how the retirement moneys will be divided, the money in a 401K or IRA for example is usually transferred by rolling it over into an account for the other spouse. If it’s a pension, documents called Qualified Domestic Relations Orders are processed to legally grant the recipient spouse a right to a certain percentage of the pension when it’s eventually paid out

I inherited property from my parents, is spouse entitled to inheritance?

It depends. Inherited property is technically subject to division in MA because ALL property that either party owns at the time of divorce is part of the “marital pot.” However, the party inheriting the property may get a credit for it, depending on the circumstances. For example, if the property was inherited before the marriage and it was kept separately, the recipient has a better chance of keeping all of it. Similarly, if the property was inherited at the tail end of the marriage, close to or after the time of filing for divorce, there’s also a higher probability that the recipient will keep all of it. Generally, the longer the marriage and the more intertwined the inheritance became with the marital finances, the more likely it is to be subject to division.

Alimony

What is alimony based on?

Alimony is based on a number of factors that inform the court as to whether there should be support payed to financially weak spouse. The primary factors are whether the potential payor has an ability to pay and whether the potential recipient has a financial need. The other factors used by the court include the incomes of the parties, the length of marriage, contributions to the marriage (economic and non-economic), marital lifestyle and the ability of each party to maintain it, and others.

Generally, the longer the marriage, and the greater the disparity in income between the parties, the greater the chance that alimony will be ordered.

How to avoid alimony?

You can try to avoid alimony by arguing that either 1) you can’t afford it, or 2) the other spouse doesn’t need it. This becomes more and more difficult to achieve as the disparity in income between the parties and the length of the marriage are greater.

Another method of avoiding alimony is by increasing your offering in property division. If your circumstances call for alimony and you want to try to avoid it, you can offer your spouse a disproportionate share of the property as an “alimony buyout.” Whether this is wise depends on your alimony exposure and what it will cost you in assets/property to eliminate it.

Although you certainly should be working to reduce your alimony exposure, be careful about manipulating your income to avoid alimony. If the court finds that you’re intentionally unemployed or underemployed or in any way purposely decreased your income, the court can “attribute” income to you. Essentially that means the court can treat you as if you’re earning the higher amount for purposes of the alimony analysis.

How many years does a person have to pay alimony?

Alimony Reform of 2012 set time limits on alimony in MA. First, alimony generally does not continue beyond the payor’s social security retirement age, which is generally 67.

In addition, there are time limits based on the length of the marriage. If the marriage is 5 years or less, it’s 50%; between 5 -10 years, 60%; between 10-15 years, 70%; and between 15-20 years, 80%.

The court has discretion to deviate from these time limits for “good cause,” but must explain its reasoning in writing.

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