massachusetts-divorce-law

Croak v. Bergeron

2007-08-14T11:45:00.000-04:00

Croak v. Bergeron, 67 Mass.App.Ct. 750 (2006):
The parties were divorced in 1998. There were two children born of the marriage. In 1999, the mother filed a compliant for modification, and the child support was increased to $969.54 per week. In 2000, the father filed a complaint for modification of his child support obligations because of his involuntary unemployment. After a trial on the merits of his complaint,the trial judge held that the father failed to show a material and substantial change in circumstance to justify a reduction in child support, and the father appealed. While the complaint was pending, a temporary order was issued on September 13, 2000, that reduced the weekly support from $969.54 to $156.92 a week, with the difference to accrue until a final judgment was made. After the trial, the trial judge found that the father's work history was in the nuclear power industry but was unemployed at times. The father's unemployment coincided with his court appearances so that he could report he was unemployed. The trial judge also found that since September 13, 2000 up to the judgment dated November 19, 2003, the father received $447,700 in income and assets (including a settlement and inheritance), while the mother and children struggled to meet their needs. The father's income and assets are included as income and the child support guidelines. The trial judge has discretion to consider the totality of the parties' circumstances. Based on the facts above, the trial judge made no error, and the judgment was affirmed.

Link to case full text: Croak v. Bergeron

Prenuptial Agreements in Massachusetts

2006-05-30T13:51:00.000-04:00

What is a prenuptial agreement?

Prenuptial agreements are contracts entered into between people planning to get married. The purpose of the agreement is to define for the couple what the disposition of their financial assets will be in the event of divorce or death. In order to be valid they must be executed prior to the wedding. Both parties should have legal counsel and there needs to be a full financial disclosure of all assets of the parties. The agreement will ordinarily be enforced if it is executed properly and there is no fraud or duress involved in its execution. There is case law that suggests that if a prenuptial agreement is signed immediately prior to the wedding that could be evidence of duress. The courts in Massachusetts have also ruled that if at the time the agreement is sought to be enforced, a "second look" would take place to make sure that the agreement is not unconscionable in light of the circumstances at the time you are seeking to enforce it.

What happens if I don't have one?

If you don't have a prenuptial agreement the laws of divorce of the state you reside in at the time of your death of divorce will apply to your situation if you divorce, and the laws of inheritance will apply if you die. If you are comfortable allowing the state laws to determine these things there is no need to sign a prenuptial agreement. Read more

Reasons Why You Should NOT Choose Collaborative Divorce

2005-11-19T21:57:00.000-05:00

What is collaborative divorce?

You should see my other article entitled "Getting Divorced? You Have Options" for details, but essentially in Collaborative Divorce clients choose specially trained collaborative divorce lawyers who are committed to a negotiated settlement. Clients agree in advance not to go to court except for obtaining of the divorce judgment, in an uncontested proceeding. Negotiations are conducted primarily in meetings with clients and attorneys in the room. Full disclosure and transparency is the hallmark of this process. Gamesmanship, threats to "see you in court" and the like are absent from this process. In the event the case does not settle, the collaborative attorneys are required to withdraw from the case and the clients choose new litigation counsel. With this feature the attorneys have no incentive to foster litigation.

Sounds Great right? Why shouldn't everyone choose Collaborative Divorce? The following are reasons NOT to choose collaborative law:

1. Domestic violence or child abuse. Any history of recent domestic violence makes it foolish and perhaps even dangerous to consider a process in which parties are required to sit in the same room.

2. History of Financial misconduct: In a contested divorce financial restraining orders preventing the transfer of assets can be obtained automatically upon commencement of the case. This can prevent marital assets from disappearing. If there is a meaningful concern about this kind of behavior, clients should go to court immediately.

3. Serious mental illness: If one party has major depression, substance abuse, or psychosis, Collaborative Law is unlikely to work, although there is little risk in trying. Often an experienced Collaborative Lawyer is the best resource a person with such a disability can have, although, there may be a need for court intervention if the party's ability to participate in the process is seriously impaired. In that situation a court appointed "Guardian ad Litem" will be appointed to act on behalf of the impaired spouse, and in such situations, Collaborative Divorce may be difficult to pursue.

4. If one party is not committed to the Process. For Collaborative divorce to work, both parties have to be committed to attempting to work in this fashion. If one party refuses to be transparent about disclosing information, or is using the Collaborative Divorce process as a way to delay or avoid dealing with the hard issues, then the only way to move things along so the parties can finally be divorced, is to go to court.

Most litigated cases end up settling eventually and for that reason even if Collaborative Divorce, as formally practiced is inappropriate, it does not mean that your divorce will be World War III, however, it is important that clients not be afraid to obtain the protection of the court when indicated. Most lawyers practicing Collaborative Divorce are very enthusiastic about it and I am certainly one of those lawyers, but make sure that your lawyer's enthusiasm is tempered by a strong dose of reality or you could regret not protecting yourself in court.

hgoldstein@rfglawyers.com
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Your first appointment with your divorce lawyer

2005-11-02T23:04:00.000-05:00

For most people the first step they take in getting divorced is contacting a divorce lawyer. A lot has been written on how to choose a lawyer. This article assumes that you already have chosen a lawyer who you think you will be satisfied with.

There is a fair amount of anxiety surrounding that first meeting with a new client and his/her divorce lawyer, and it is important for the clients and for their lawyer to understand how charged that first encounter is and to expect that it will be somewhat difficult for clients. Clients are fearful because of the predicament they are in. Regardless of how well thought out their decision is to consult a lawyer, and this lawyer in particular, it is a moment of high tension. Clients are not generally at their best in these first meetings. It is often helpful for clients to receive handouts of materials they can read later, and to be able to take notes at that first meeting.

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For questions relating to Divorce in Massachusetts, please email the author: hgoldstein@rfglawyers.com or call Howard Goldstein at 617-964-7000 or 800-996-4361 - HGoldstein.com

Getting Divorced? You Have Options

2005-11-02T13:34:00.000-05:00

A Closer Look at Litigation, Mediation, and Collaborative Law

Couples often find the preliminary stages of the divorce process overwhelming because of the many issues they need to consider. Among these are questions about support, asset division, and children. Reaching agreement on these issues is almost never easy, and couples are often besieged with advice from well meaning friends and family, and articles such as this. The reason why this process can be so bewildering is because each situation requires a unique solution. Save the simplest cases, there are no standard resolutions. Thus, the guidelines of family law are intentionally flexible and lacking in clear guidance and rules. In light of this, couples must first understand their choices when getting a divorce. These include litigation, mediation, and collaborative law. Each approach has its advantages and its advocates. It is up to each couple to try to figure out what process suits them best, rather than focusing on specific solutions.

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For more information about any of these divorce options, please contact Howard Goldstein, an experienced family lawyer who practices litigation, mediation and collaborative law in Newton, Massachusetts. Email: hgoldstein@rfglawyers.com, phone: 617-964-7000 or 800-996-4361 - HGoldstein.com