FAMILY LAW

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People contemplating divorce typically have some idea of what to expect. They’ve witnessed divorces in the movies and often personally know at least a handful of people who have been through a divorce. In spite of this “second-hand” experience, facing your own divorce is one of the more frightening events in life.

Not only do you face a court-sanctioned ending of possibly one of the more significant relationships you have ever had, you also must begin to think about such unpleasant things as the division of property and new living accommodations. In many cases, there is also the unhappy prospect of no longer seeing your children on a daily basis.

Predictability and divorce don’t go together. But, armed with realistic expectations, you’ll have the best chance of being satisfied with the end result of your divorce. Consequently, it’s wise to understand the realities of what a divorce can and can’t do for you. So what is divorce good for, anyway?

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All divorcing couples must divide their marital property and assign marital debts as part of the divorce process. Massachusetts law requires the division of property in a divorce to be equitable, meaning that it must be fair, though not necessarily equal. Some couples are able to agree on their own about how to divide property, while others seek the help of attorneys or a mediator to help them negotiate a settlement. Couples who don’t manage to resolve property issues on their own will end up going

Marital Property and Separate Property

While only property that a couple acquires during marriage is “marital property,” Massachusetts law allows a judge to divide all of a couple’s property in any manner that seems fair, regardless of when it was acquired or which spouse actually owns it–in other words, the judge can divide both marital and separate property. However, a court will usually, but not always, award separate property to the original owner in a divorce–separate property is property one spouse owns before marriage or acquires by gift or inheritance during the marriage.

It can sometimes be hard to determine what property is marital and what is separate. Marital and separate property can become mixed together—sometimes called “commingling.” A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage or other expenses, or contribute to significant improvements. If spouses aren’t able to decide what belongs to whom, the judge will have to decide whether to treat any of the commingled property as premarital property belonging only to one spouse.

A couple making their own agreement can divide assets in whatever way they see fit. Some couples have a premarital agreement defining property as separate or marital; if there is a prenup, it can make dividing property much easier.

Assigning Value

The spouses—or the court if the spouses can’t agree—generally assign a monetary value to each item of property. Appraisals can help a couple determine the value of real property as well as items like antiques or artwork. Retirement assets can be very difficult to evaluate and may require the assistance of an actuary, C.P.A., or other financial analyst.

Dividing the Property

Spouses can divide assets by assigning certain items to each spouse, or by selling property and dividing the proceeds. They can also agree to hold property together. Most couples don’t do this, because they want a clean break rather than an ongoing financial entanglement, but there are some circumstances where it makes sense. For example, some couples agree to keep the family home until children are out of school. Others may keep investment property that is at a low ebb, hoping it will increase in value.

The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one spouse or the other.

If the couple can’t agree on how to divide property and debts, a judge will decide, taking into account each spouse’s:

• age, health, and station in life,
• occupation, vocational skills, and employability,
• amount and sources of income,
• liabilities and needs,
• opportunity for future acquisition of capital assets and income, and
• estate.

Other factors a judge will consider include the length of the marriage; the present and future needs of any dependent children of the marriage; and any spousal misconduct that caused the breakdown of the marriage. Courts are especially likely to consider misconduct that resulted in the waste or dissipation of marital assets available for distribution (gambling, for example, or giving away large amounts of money without the other spouse’s consent). A court may also consider each spouse’s contributions to the acquisition, preservation, or increase in value of their respective estates, and either spouse’s contributions to the family unit as a homemaker.

There is no fixed formula for determining what is equitable; every case depends on the individual facts and circumstances. In general, the shorter the marriage, the more likely a court will be to try to put the parties back into roughly the same situations they were in prior to the marriage; in a very long marriage, the court is more likely to order a roughly equal distribution of property and to ensure that both spouses can maintain a standard of living similar to what they had during the marriage.

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In Massachusetts, both parents have a duty to support their child. Typically, however, only the noncustodial (parent without primary physical custody) parent makes child support payments. The “custodial parent” is the parent who lives with and has primary care of the child. This parent remains responsible for child support too, but the law assumes that a custodial parent spends the required amount directly on the child.

The amount of support depends on a set of factors that make up the child support guidelines. Parents can agree to pay more than the guideline amount with court approval, but rarely less. In any case, a court can deviate from the guidelines and adjust the amount of support up or down if a judge determines that it is in the child’s best interest to do so.

If one parent is intentionally or voluntarily unemployed or underemployed and reports a smaller income than earned in the past, a judge can impute (assign) a higher income to that parent.

How to Calculate Child Support Payments in Massachusetts

The Massachusetts Courts website publishes child support guidelines and instructions to help you estimate your fair share of child support. To calculate support, you’ll need to know both parents’ gross incomes. For child support purposes, gross income is money received from all sources, including wages, bonuses, salary, dividends, royalties, pensions, military pay, disability and social security income.

Child support is calculated by adding up the parents’ combined incomes and splitting support proportionally between the parents. In other words, if the parents earn $6,000 and $4,000 per month, then their proportional support responsibilities will be 60% and 40%, respectively. In addition, parents must also cover a child’s health insurance, and educational costs. A court may require parents to split the costs of extracurricular activities like summer camp or private school if it’s in the child’s best interest and the parents can afford it. See Mass. Gen. Laws ch. 208 § 28 (2020).

If one parent is intentionally or voluntarily unemployed or underemployed and reports a smaller income than earned in the past, a judge can impute (assign) a higher income to that parent. Quite simply, a parent can’t avoid child support payments by failing to work.

Parenting Time

The guidelines use different calculations depending on how the parents share custody or parenting time. There is a general formula for computing payments, but it’s based on an assumption that the child has a primary residence with one parent and spends roughly one-third of the time with the other parent. If parenting time is less than one-third with the non-residential parent, the court may increase the amount of support.

Where the parents share roughly equal custody and visitation time, each parent must complete the child support worksheet to calculate their responsibility for support. The parent with the lower weekly support amount receives the difference of the two amounts. For example, if Parent A has a weekly support amount of $500 and Parent B’s weekly support amount is $400, then the difference of $100 is paid by Parent A to Parent B.

Where a parent’s minimum amount of time spent with the child is more than one-third, but less than half, the parent who has the most time (more than 50%) should complete the worksheet as the Recipient. Then you have to do the calculation again as if the parents shared equal time (as in the paragraph immediately above). The average between the base support (the first calculation) and the second, shared calculation will be the amount paid to the Recipient.

Where parents split custody, meaning, one child lives with Parent A and a second child lives with Parent B, then the calculations are the same as for sharing equal time. You can learn more about different custody and parenting arrangements in our article “Child Custody in Massachusetts”.

Challenging the Amount of Child Support

Once you have completed the appropriate calculation, the outcome will be an amount of support that the state presumes to be appropriate for your child. Sometimes, however, the total amount or the way it is divided is unfair. Before the order is in place, you can still ask the court to adjust the amount, but you will have to show that it is in the child’s best interest.

Courts consider the following when deciding to adjust support:

• the parents’ agreement to a different support amount
• the child’s special needs or aptitudes
• the child’s extraordinary medical or other expenses
• the amount necessary for a parent to self-support
• whether the paying parent is in jail
• whether there is gross disparity in the parents’ standard of living
• a parent’s extraordinary medical expenses
• a parent’s extraordinary travel or other parenting expenses
• whether the parent and child can be reunited after a child was temporarily removed from the home due to neglect or domestic violence
• if application of the guidelines would result in an unjust order
• a parent’s extraordinary health insurance expenses
• a parent’s childcare cost if disproportionate to the parent’s income, and
• where one parent provides less than one-third of the parenting time.

 

Modifying the Amount

Once a child support order has been in place for more than three years, you may still be able to change it if any of the following apply:

• there is an inconsistency between the amount the parents currently pay and what would result from the guidelines

• the health insurance previously ordered is no longer available, or only at an unreasonable cost, or

• any other material and substantial change in circumstances, like the loss of a job or birth of a new child, among other events impacting the parent’s ability to pay support.

If it has been less than three years, then a mere inconsistency between the current order and the guidelines, is not enough. The parent requesting the modification must also show a substantial change in circumstances.

Be aware, however, that if a court deviated from the guidelines in making your initial order, the reason for the deviation must still exist and, it must still be in the child’s best interest to maintain the deviation when you request the modification. Otherwise, the usual guidelines amount will result unless it would be unjust or inappropriate for other circumstances.

Also, parents who agree to a change can file a joint petition for modification of child support judgment. Unless a judge has questions or concerns about this new plan, there will not be a court hearing. The court will decide whether to modify the current order purely on the parents’ joint petition and any supporting documents.

Collecting and Enforcing Child Support Orders in Massachusetts

Once you have a new or modified child support order in place, the difficult part may be collecting payments from your ex. Many parents pay on time and in full, while other parents go to extreme lengths to avoid paying support. A parent has little excuse to avoid paying support because support payments can be made in cash, by check, bank transfer, or by using a payment app, such as Venmo or Zelle, or direct deposit. If you’re struggling to collect your court-ordered support, contact the Massachusetts Child Support Division for help establishing, modifying, or enforcing child support orders.

 

 

 

 

 

 

 

 

 

 

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Massachusetts parents who are involved in custody disputes need good, current information.  Understanding the child custody laws in Massachusetts can help you better prepare to seek a custody order or write out a parenting plan.  This guide will explain the types of custody available in Massachusetts as well as explaining some of the state’s regulations surrounding custody issues.

Can Children Decide?

According to child custody laws in Massachusetts, judges must take a child’s wishes about his or her custody into account when the child is 12 or older.  However, the judge is not required to abide by these wishes if there is another reason that the child should not be with his or her preferred parent.

The overarching standard in Massachusetts, as in all other states, is the best interest of the child.  Because of this, child custody laws in Massachusetts allow judges to use many other factors other than a child’s wishes in making a custody determination.  The older a child is and the more well-reasoned their decision seems, the more likely a judge is to abide by a child’s stated preference.

Shared Custody Implementation Plan

Child custody laws in Massachusetts require that parents seeking shared custody provide a shared custody implementation plan to the court.  This allows the court to see that the parents have seriously thought about the implications of dividing their parenting responsibilities and understand what shared parenting will entail.

A shared custody implementation plan must include, according to child custody laws in Massachusetts, details of how a child’s education and healthcare decisions will be handled by the parents, procedures for resolving disputes, and when the child will reside with each parent.  This plan is likely to be accepted by the court,but may be rejected if it is not seen as in the best interest of the child.

Legal Custody

Two kinds of legal custody are specified under child custody laws in Massachusetts.  The first, sole legal custody, allows one parent to unilaterally make decisions about a child’s education, healthcare, and religion.  Shared legal custody, on the other hand, requires parents to cooperate and make these decisions together.

Physical Custody

Child custody laws in Massachusetts also provide for two forms of physical custody.  Sole physical custody means that one parent will reside with the child for the vast majority of the time.  Reasonable visitation for non-custodial parents is mandated by child custody laws in Massachusetts.  This visitation may be supervised by a friend, family member, or social worker if the court deems this appropriate.

 Shared physical custody is also available, especially for parents who can develop a plan together that will split their custodial responsibilities.  Child custody laws in Massachusetts define shared physical custody as any arrangement that gives the child frequent and continuous contact with both parents.

 

CARE AND PROTECTION CASES INVOLVING THE DEPARTMENT OF CHILDREN AND FAMILIES (DCF) f/k/a THE DEPARTMENT OF SOCIAL SERVICES (DSS)

Attles Law Group has extensive experience representing both juveniles and adults in all matters before the juvenile courts throughout Massachusetts; including Care and Protection cases which involve the Department of Children and Families (DCF), formerly known as the Department of Social Services (DSS).

DCF can become involved in your life because of a complaint filed against you, even an anonymous complaint, alleging the abuse or neglect of your child or children. Most school employees, nurses, doctors, social workers, police officers and others are “mandated reporters” which means that they are required to file an Abuse and Neglect Report (51A) with DCF, pursuant to Massachusetts General Law 119, §51A, if they merely suspect a child has been abused or neglected. They do not need proof to file a 51A. Mandated reporters may file a 51A because of something that was told to them (oftentimes by young children) without analyzing the veracity of the statement. Oftentimes statements, especially those of children, are not reported accurately, or are taken out of context; causing irreparable harm to a family.

Many times, persons such as an angry neighbor or ex-partner make false allegations to DCF in an attempt to harm you. These false and harmful claims of abuse or neglect can turn your life upside down by sending DCF to your door to interrogate you or a family member. This is a reality that happens to thousands of families each year. Bare allegations, without independent verification, can result in the immediate removal of a child from their parent’s custody. If this happens, the parent is now on defense attempting to convince DCF that they are a good parent in the hopes of having their child returned to them. If DCF enters your life, get qualified legal representation immediately.

If your child is removed from your custody on an emergency basis, DCF has to file a Care and Protection case with the Juvenile Court. Care and Protection matters, if not resolved, can result in a termination trial where DCF seeks to terminate the parent’s parental rights as to their children. It is extremely important that you obtain competent representation from an attorney well versed in juvenile law as the rules of evidence are significantly different than in adult courts. A competent attorney in adult court is not necessarily a competent attorney in the juvenile courts. Attorney Abeba Attles has experience representing clients in Care and Protection cases as well as other matters involving the Department of Children and Families including 51A reports, 51B Investigations, Assessments, Termination of Parental Rights trials, Fair Hearings, Guardianship matters, Adoptions and CRA issues.

Being unrepresented or inadequately represented when dealing with the Department of Children and Families may have very serious and permanent consequences. You are strongly urged to seek qualified legal representation to protect your rights in these very difficult situations. Your parental rights as to your children depend on it.