We Have Decided to Separate – What Now?

Separation can be a valuable tool for Spouses contemplating divorce because it provides the opportunity to live apart without the daily presence of the other Spouse.  It can help people decide whether it is best to stay in the marriage or end the marriage.  If the Spouses decide they would rather work out their marriage than end it, then separation will be temporary, and the Spouses will reconcile.  Often, however, one or both Spouses will decide that the marriage cannot be reconciled, and that divorce is the best option for the Spouses and their family.  If divorce is necessary and no one takes that final step, the Spouses remain separated for an extended time.

If you are separating and legitimately trying to work on your marriage, then have a timeframe in mind in case a Complaint for Divorce becomes necessary.  If you are separating and/or separated, and you know that the marriage is irreconcilable, do not remain separated indefinitely because you will be foregoing all the protections that are provided when the divorce process begins.

AUTOMATIC RESTRAINING ORDER:

When Spouses decide to divorce, a Complaint for Divorce is filed and served.  The Rule 411 Automatic Restraining Order goes into effect against the Plaintiff when the case is filed, and against the Defendant when that person is served with the Complaint and Summons.  The Automatic Restraining Order prohibits the Spouses from dissipating marital assets, changing beneficiaries and eliminating life and health insurance coverages.  It is enforceable by the Probate and Family Court[1].

SPOUSAL SUPPORT:

Spousal Support a/k/a Alimony is calculated from the date of marriage to the date of service of a Complaint for Divorce.   The Alimony Reform Act of 2011[2] set clear durational limits on payment of Spousal Support:

[T]he number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage.

M.G.L. c. 208 §48

Alimony has clearly defined durational limits based on the number of months married and so long as a Complaint for Divorce has not been filed and served, the “months of marriage” continue to accrue.  This leads to a longer period of Spousal Support exposure.

PROPERTY DIVISION:

Generally, marital assets are assets obtained during the marriage regardless of which Spouse has made the financial contributions.  For example, if a party has a 401K that is changing due to contributions and market changes, that asset will continue to be divisible until the date of divorce.  In other words, during the entire time of separation, the marital assets that increase or diminish remain 50/50 divisible absent some very limited circumstances.  Spouses cannot finalize a divorce until after a Complaint for Divorce has been filed and served or they have created a separation agreement and filed a Joint Petition to Divorce with the Court.

TAXES:

Historically, Alimony is deductible by the payor Spouse and taxable to the recipient Spouse.  In December 2017, Congress passed The Tax Cuts and Jobs Act.  Among the many changes to the Federal Tax Code, this Act changed Alimony substantially.  Specifically, any Alimony order or agreement executed after December 31, 2018 will no longer be taxable to the recipient Spouse and deductible by the payor Spouse.  In other words, Alimony, like child support, will be an after-tax support payment.  For more information, please see the Grossman & Associates, Ltd. Podcast dated January 15, 2018 (https://grossmanltd.com/podcasts/).  In this Podcast, Attorney Hindell Grossman discusses the impact of The Tax Cuts and Jobs Act with Alan Huberman, a CPA and Partner with Blum Shapiro.

If you have questions and would like to discuss your individual situation with a caring and qualified divorce professional, please call Grossman & Associates, Ltd. for a consultation appointment.

For more information, please listen to Episode 22 of our Podcast: Inside Divorce.

Podcast Link: https://soundcloud.com/grossman-associates-ltd-official-youtube-channel

[1] Supplemental Probate and Family Court Rule 411: Automatic Restraining Order

[2] M.G.L. c. 208 §§48-55

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The Do’s and Don’ts of Dating During your Divorce  

 

The divorce process is never as quick as one expects it to be regardless of how amicable the Parties are with one another.  The fact is, most divorces are not amicable and the timeline for the process could range from one to a few years before a judgment of divorce is granted.   Given the length of time a divorce could take from the initial break-up to the final divorce it is not uncommon for one or both of the Parties to date.  Depending on the contested issues between you and your spouse, dating during your divorce could be a very delicate situation and your divorce attorney should be made aware of any romantic relationship you are engaging in.

My advice to anyone on dating while going through a contested divorce case would be “don’t do it”.   It’s not that it’s “illegal” to do so, but only that dating during this time is inflammatory to the other spouse who may be unusually hostile, uncompromising or defiant in response.    Dating while the children are experiencing the family divorce can also create additional insecurities and conflicts, including interrogations of the children by the other spouse about your dating life.

However, if you must date here are a few basic dating Do’s and Don’ts you should be aware of:

  • Keep all finances separate, and do not pay for any dates, trips or gifts until your divorce.
  • Keep your romantic status off of social media – this includes pictures, status updates and address changes.
  • Most importantly, keep your dating life separate from your family life…in other words do not introduce your significant other to your children, your divorce attorney will thank you for it!

 

Which Type of Alimony is the One For You? 

 

Massachusetts’ 2011 Alimony Reform Act, M.G.L. Chapter 208, Section 48 not only changed the terms, duration and calculations of the old alimony rules, but added three (3) types of alimony Massachusetts had not previously recognized: Rehabilitative Alimony; Reimbursement Alimony; and Transitional Alimony.

  • Rehabilitative alimony – Alimony paid by one Party to the other Party for a period of time in order to allow the Party receiving alimony to gain employment or learn a new skill so that they will become self-sufficient in the future.
  • Reimbursement alimony – Alimony paid by one Party to the other Party for a period of time as reimbursement for contributing (economic or non-economic) to the financial resources during the time the Party paying alimony was enrolled and attending school and/or job training. Reimbursement alimony only applies to marriages lasting five (5) years or less.
  • Transitional alimony – Alimony paid by one Party to allow the other Party to adjust to a new lifestyle or a move to a new location which is a result of the divorce. Transitional alimony only applies to marriages lasting five (5) years of less.

 

When To File a Complaint for Modification

Most likely your divorce agreement/judgment will have to be modified at some time in the future, especially if you have children.  Issues such as child support, parenting plans, and health insurance benefits are likely “merged” into your final divorce agreement and therefore are modifiable.

The most common reasons for modifying a child support order are:

  • If, under the current Massachusetts child support guidelines, the amount owed is less than or greater than the amount of child support in the original divorce;
  • Your health insurance premiums have increased or decreased since the date of your last child support judgment OR the other parent can now get more affordable health insurance than he/she could have in the past; or
  • A material and substantial change in circumstances has occurred since your last child support judgment which would warrant an increase or decrease in your child support order. The most common change in circumstances are an increase and/or decrease in the incomes of either parent, a change in the child’s living arrangement, and a child’s attendance at college.

It is important to remember that you should file a Complaint for modification of child support IMMEDIATELY following the change in in circumstances.  A Judge can only apply the new child support amount retroactive to the day the Complaint for Modification was served on the opposing party.  In other words, if you lose your job but do not file and serve your Complaint for Modification until six (6) months later , a Judge will not be able to modify the child support amount for that six (6) month period.

If you or someone you know is looking to modify an existing agreement or order, please call Grossman & Associates, Ltd. at 617-969-0069.

Don’t Put Anything in Writing You Don’t Want on the Front Page

Break-ups bring about many emotional challenges, regardless of whether you are the “break-uper” or the “break-upee”.  The additional challenge of having your relationship played out in a courtroom and feeling as though every one of your actions are being monitored can be overwhelming.  Understanding, identifying and releasing your emotions can be therapeutic in dealing with a broken heart, but this should be a private matter.  The truth is that when you are going through a divorce or paternity action your actions ARE being monitored and the best legal advice we can give you is: Never, ever put anything in writing you don’t want published on the front page of the newspaper.

Emotions can take control of your thinking, behavior and actions.  As a result your judgment is impaired. Texting, emailing, Facebooking or using other forms of social media to air your feelings about your ex into the late hours of the night must STOP.  I don’t know of one time that any social media posting or text/email writing to an ex was helpful, but I do know of many, many, many times it has hurt the writer’s case.  Writing in a journal, talking to a friend or a therapist are healthy ways to express your feelings and help your case.  DO NOT compromise your case by sending nasty, hostile or threatening communications to your spouse during the divorce.

What You DON’T Say to Your Children is in Their “Best Interest”

 

One of the biggest challenges facing clients who are involved in a custody dispute is remembering to keep their children, the subject of the dispute, out of it.  How successful or unsuccessful you are with this challenge could make or break your position with the judge in your case.

3 important things to remember:

  • While honesty and open communication is key to continuing a healthy relationship with your children, the play by play or status of your on-going custody case should never be a part of any conversation that you have with your children. Instead, reassure the children that you and your spouse are working together and will let the children know when there is resolution.

 

  • Discussing your ex’s past transgressions or their lack of parenting skills in the presence of your children will only hurt your children. These “conversations” that you may be having with your friends or family members while your children are within earshot are what judges often refer to as “disparaging remarks” and judges have little patience or tolerance for and neither parent should disparage the other parent in front of the children.    Set an example for how your children should act.  While you may have nothing good to say about your spouse keep your real feelings to yourself so you not fueling the fire.

 

  • Asking your children to choose between you and your ex is never acceptable – never. Your responsibility as a parent is to prioritize your children’s well-being before your own.    Divorce makes children feel vulnerable and fearful.    Reassure your children that they are important and you will always take care of them.

We’re Lawyers of the Day, and Much More!

We believe in volunteering.

The Probate and Family Courts in Middlesex and Norfolk Counties (which are located in Cambridge and Canton) have developed a Lawyer of the Day Program in partnership with the Administrative Offices of the Court and various Bar Associations.   Attorneys like us are asked to volunteer our time to provide justice to pro se litigants (i.e., those representing themselves).

As part of our firm philosophy, Suzana and I served as Lawyers of the Day in 2016 and annually before this, each providing a full day of legal services to those who appear at the courthouse and are in need assistance.    It was a grueling day full of sad circumstances.  My experience included two sisters in their early twenties who needed help becoming guardians for their 13 year old brother and disabled sister.  Their father recently died and their mother had disappeared.  The disabled sister was in a facility which wanted to transfer her but her Mother was unavailable to authorize the move.   The brother was being raised by his older sisters and the school needed to know who was legally in charge.    Other cases were similarly heart-wrenching.

Volunteering in the court made it clear how hard our court personnel work to help the public, and the toll it takes dealing with the circumstances of the less fortunate.

While Suzana and I volunteer our legal skills, and I volunteer as a Board member at two non-profit organizations,  Patryce volunteers and serves as an Ambassador for the Newton/Needham Chamber of Commerce and at her church where she serves on the scholarship committee.   She is in charge of welcoming new members to the Chamber and promoting community development.   There is no question that Patryce makes them feel welcome.