297 E. Main Street (Rt. 20)
Office: DIVORCE AGREEMENT
Financial Statements | Child Support | Support Guidelines | Calculation | Division of Marital Assets/Alimony
Valuation of Assets | Alimony | Divorce Agreement | Merger and Survival Provisions
Custody and Visitation
The standard by which the courts determine custody/parenting arrangements for the minor children of divorcing parents is what is in the childrens' "best interests".
The court takes into consideration several factors in making its "best interest" assessment. These factors usually include (but are not limited to) the following:
- the current custody/parenting plan -- who has served as the primary care taking parent,
- any special emotional or other needs of the child that need to be met,
- the availability of each respective parent,
- any impairments of a parent that may impact his/her ability to care for a child,
- parental fitness -- history of physical or emotional abuse, and/or drug or alcohol problems,
- child's expressed preference.
Custody - Defined
The courts will determine both physical and legal custody of minor children.
Physical Custody specifies with whom the child will reside. If the child resides principally with one parent, that parent will be awarded primary physical custody with authority to make the daily decisions regarding the child. Oftentimes, the parties will agree to a joint physical custody.
Legal Custody specifies authority to make major decisions regarding the child (for example; health/psychological treatment, choice of school, religious upbringing). It is presumed that the parents will have joint legal custody unless it is proved that joint legal custody would not be in the child's best interest.
Guardian Ad Litem
In a contested case, the court may appoint a Guardian ad litem to investigate and report to the court the facts related to custody and visitation of the minor children.
The Guardian ad litem is usually a social worker or psychologist experienced in the area of child custody. His/her role is to obtain relevant information and report that information to the court to help the court make a custody decision. Typically, the parties will be ordered to share the cost of the Guardian ad litem's services equally.
Parent Education Program
Standing order 1-98 mandates that all parties to any divorce actions in which there are minor children must attend a court-approved Parent Education Program.
No pre-trial or trial will be held by the court until the court receives a certificate of attendance by both parties.
Removal of the Child from MA
Once a divorce complaint has been filed, no one may be permitted to remove a minor child from the Commonwealth of Massachusetts without specific permission made by both parents or by the courts.
Financial Statements
The court requires the filing of a completed financial statement at all hearings where money issues are to be resolved: for example, support, advancement of monies to pay attorney's fees, etc.
Parties where annual income is less than $75,000.00 must file a pink short form financial statement.
Parties where annual income is $75,000.00 or more must file a purple long form financial statement.
The financial statement is one of the most important forms to be filled out by a party in the divorce, and, as such, must be done carefully and accurately. Every line must be filled in with some information. In many instances, the line may be filled in with "none" or "0". All income and expenses are calculated on a weekly basis. So, if you are paid on a monthly basis or pay monthly bills, you will take that monthly number and multiply it by 12 and then divide by 52 to arrive at the weekly number. Refer to your records (checkbook, bills,etc.) to get accurate information. Refer to recent bank, stock brokerage, pension, and other statements to ascertain accurate, up-to-date asset and liability information. Additional information that cannot fit on the court form may be attached to it.
Once each party has filled in this form, his/her attorney should carefully review it. The party will sign it under the pains and penalties of perjury and the attorney will certify to the accuracy of the information.
The Judge presiding over any hearing will rely on the representations made in the financial statements in issuing orders.
Child Support
An order for child support may be agreed to or ordered by the court after a hearing; it may issue in the form of a temporary order and/or in the divorce judgment.
Child support may be modified when a material and substantial change of circumstance occurs and the court enters a new support order after it finds that such a change has occurred.
In many cases when seeking the establishment or modification of child support, there is a presumption that "child support guidelines" apply, unless the court finds that application of the guidelines would be unjust or inappropriate.
Support Guidelines
- The child support guidelines were established to:
- minimize the economic impact on the child of a family breakup,
- encourage joint parental responsibility,
- provide a standard of living for the child had the family remained intact,
- meet the child's survival needs and entitle the child to a higher standard of living if possible,
- protect subsistence level of parent's income,
- take into account the non-mandatory contributions of both parents,
- minimize the problem of proof and allow for adjustments.
Emancipation as defined by statute is over the age of eighteen (18), unless the child is living with a parent upon which that child is principally dependent. Then, the date of emancipation is extended to age twenty-one (21). The date of emancipation may be further extended to age twenty-three (23) if the child is attending college full-time.
Calculation
The calculation of child support is done by utilizing the guideline worksheet supplied by the court.
Division of Marital Assets/Alimony
The court has authority to divide the marital assets of divorcing parties and assess alimony pursuant to Massachusetts General Laws Chapter 208 Section 34.
This statute sets forth several criteria to be considered by the court in dividing assets:
- age of the parties,
- health of the parties,
- length of the marriage,
- conduct of the parties,
- station,
- occupations,
- amount and sources of income,
- vocational skills,
- employability,
- estate,
- liabilities,
- needs of each party,
- opportunity of each party for future acquisition of assets and income,
- present and future needs of the dependent children,
- contribution of each party to the acquisition, preservation, or appreciation of assets. The assets of the parties to be divided may
- be held individually or jointly and may include:
- pensions/retirement plans,
- businesses,
- real estate,
- stock and other investment portfolios,
- stock options,
- bank accounts,
- annuities,
- cash surrender value of life insurance policies,
- boats/cars,
- furniture, jewelry, and antiques,
- lottery tickets,
- royalties, copyrights, and patent interests,
- pending lawsuit awards.
Valuation of Assets
Dividing assets between the parties may mean obtaining appraisals of properties and determining any tax assessment that may be associated with each asset.
Alimony
Either party may be court-ordered to pay the other party alimony, based on the need of one party and the ability of the other to pay. The determination of each party's need may be determined by the court to go beyond that which is required to meet current expenses, but may be the amount that would maintain a party in the lifestyle enjoyed during the marriage.
An alimony order may be for a set number of years or until the recipient party remarries or either party dies.
Divorce Agreement
Most divorce cases settle by the parties entering into a written, signed, and notarized divorce agreement that outlines the terms of the parties' divorce.
The divorce agreement will settle all major issues.
The provisions of this agreement typically include provisions for the following:
- custody of the children,
- parenting schedule,
- child support,
- alimony,
- health insurance for children and parties,
- educational expenses,
- life insurance and/or other security for support obligations,
- marital home and other real estate,
- tangible property,
- intangible property,
- division of pensions and retirement benefits,
- tax considerations,
- division of debts,
- resolution of disputes,
- modification of agreement,
- governing law,
- counsel fees,
- waiver of estate claim,
- mutual release,
- incorporation and merger or incorporation and survival.
Careful drafting of the divorce agreement should also include designation of those claims that survive and those that merge. Clauses that merge into the divorce judgment are subject to modification in the event of a material change of circumstance, whereas clauses that survive the divorce judgment are not subject to modification and can only be re-visited upon a showing to the court that an extraordinary circumstance has occurred that would warrant a change to that provision of the agreement.
