Don’t Be Blindsided By The Division of Marital Property in Your Divorce

David M. Gabriel & Associates

Many people fail to realize divorce requires more than simply signing a few documents. If you’re divorcing in Massachusetts, don’t be blindsided by the many decisions you’re about to face regarding the division of your marital property. Not all property is valued or taxed in the same way; therefore, the process can be long and confusing without the help of a knowledgeable attorney at your side. It’s important to consider that even though different financial accounts are valued at the same amount, the account owner may receive different withdraw amounts. This is because withdrawals will not be taxed in the same way from a money market, for example, as other accounts would be. The division of retirement accounts can be particularly daunting. There are currently no tax codes or other regulations in place regarding IRA accounts. This has allowed courts to permit IRAs to be divided between divorcing couples. Regarding real estate property, if one spouse is granted full control of the marital home, for example, or vacation properties, then he or she is usually expected to pay taxes on those properties as well. Debt is another matter you will need to be well-informed about when dividing property. No matter who is awarded the property, debt owed is still the responsibility of both parties, if the property was jointly owned. This means in the event the awarded party cannot fulfill payment obligations, the bank or other entity holding the debt will expect the second named party to fulfill payment obligations.

What is the difference between a fault and no-fault divorce?

David M. Gabriel & Associates

In the Commonwealth of Massachusetts, the grounds for divorce depends on whether you decide on a no-fault or fault divorce. A no-fault divorce does not require parties to prove blame for the breakdown of the marriage. Either or both parties can file to begin the process for a no-fault divorce merely pleading that the marriage is beyond repair, and it is time to move on. The ground for this action is “irretrievable breakdown of marriage”. A fault divorce is more involved. In the Commonwealth of Massachusetts, you have the option of filing for divorce and claiming one person is to blame for the failure of the marriage. Common grounds for a fault divorce include cruelty and abuse, desertion for one year or more, adultery, impotence, excessive use of drugs or alcohol, failure to provide support or maintenance, and sentences of five years or more in a penal institution. Proving a fault divorce can be difficult. It is recommended the accusing party have solid proof of any fault grounds. Make sure to consult with a knowledgeable attorney before taking any divorce action to understand your options. Contact our office to have your questions answered today.

Protecting Assets in a Divorce

David M. Gabriel & Associates

Divorce is as much a financial blow as it is an emotional one. Alimony and child support may take a large, even unreasonable amount out of your monthly paycheck. Conversely, if your income is much smaller than your soon-to-be-ex-spouse’s, or if you stayed at home to look after the family, you might find yourself in dire financial straits if you are not awarded a just settlement. You deserve a divorce settlement that takes into account your circumstances and your contributions to the marriage— and financial, logistical, or emotional. In this article, you will find three steps to follow to protect your assets in divorce and reach the settlement that is best for you. I. Be Open and Honest—and Savvy On your end, it is important not to hide any of your assets. Hiding your assets, or even appearing to hide your assets, may be used against you in court by your spouse and his or her counsel. In fact, most people’s attempts to hide their assets—by spending large amounts of cash—fail to improve their divorce outcomes. This is for two reasons. First, because Massachusetts family courts take into account income (earnings) rather than expenditure (spending). Second, because assets are defined as more than cash, excessive spending fails to protect non-liquid holdings like stocks, bonds, and even intellectual property. To understand the full scope of your assets, it is worth investing in professional help to you value and locate them. This way you can have the knowledge you need to II.

I was married and last lived in Massachusetts with my spouse but do not live in Massachusetts now, can I get divorced in Massachusetts?

David M. Gabriel & Associates

While marriage laws are based on where the parties are at the time of marriage, divorce is based on where the parties live at the time of divorce. The answer to this question depends on how long you’ve resided outside of Massachusetts. While most states require you to be a resident before you may file divorce papers, the required length of residency varies per state. In most cases, it’s at least a minimum of six months. To file for divorce in the state of Massachusetts, one of the following must apply: You, or your estranged spouse, have lived in the state for a year, OR You lived with your spouse as a married couple in Massachusetts when your “grounds” for divorce happened. You should be aware that whatever court handles the initial divorce settlement has jurisdiction over all other residual issues such as child custody, child support, and any amendments to these arrangements. Because divorce laws can vary dramatically between the states, it is important to understand how residing in different locations may impact your right to marital property, child custody, alimony payments, and child support payments. Make sure to consult with a knowledgeable attorney before taking any action to avoid any filing issues. Contact our office to have your questions answered today.

I’ve been estranged from my husband and want to remarry. Will Massachusetts grant me a Bifurcated divorce?

David M. Gabriel & Associates

Bifurcation of divorce allows spouses to become legally divorced before the divorce details have been finalized. The option to remarry is the most common use of bifurcation; however, some couples seek a bifurcation to distinguish between marriage or pre-marriage property. In states that permit bifurcation, the court will handle the end of the marriage separately from the other divorce matters to permit the parties to remarry while providing additional time to resolve the remaining issues. This means all other resolutions such as child custody, visitation, support, distribution of property, and attorney fees are determined at a later date. Individual states such as Texas, New York, Michigan, and Arizona do not allow bifurcation in divorce cases. Even if you are living in Massachusetts, if you were married in a state that does not allow bifurcation, it will not be granted, and all issues of the divorce must be resolved before the divorce is finalized and the couple can claim legal single status. The process of bifurcation generally requires the filing of legal documents; however, both parties must agree to a bifurcated divorce before a court will grant one. There is an exception to this if the requesting party shows good legal cause for bifurcation and the court agrees that the action would not jeopardize the interests of the other party. You should consult with a knowledgeable attorney before taking any action, as there are certain restrictions in place that can affect the process in various ways.

How do courts determine if relocation of a child to another state during a divorce is acceptable?

David M. Gabriel & Associates

In situations where a custodial parent wishes to relocate with a child, the court will determine whether child custody relocation is in the best interests of the child. While a parent is free to relocate out of state themselves without the child or with the permission of the other parent to take the child, the state of Massachusetts requires a judge ruling regarding relocation contested by a parent. Depending on the current custody agreement, the judge has two different processes for determining if relocation is in the child’s best interest. For joint or shared custody the judge will take into account the following: Whether or not the quality of the child’s life will be improved and if the child will endure similar benefits as the parent from the move. Adverse effects of altering visitation schedule and the extent to which the child’s relationship to the non-moving parent will be compromised. How the child’s emotional, physical, or developmental needs will be impacted by moving or not moving. If there is a way to create a new visitation order to allow the non-relocating parent to maintain a close and enduring bond with the child. In the event a parent with primary custody is requesting relocation, the judge will apply what is known as the “real advantage” standard as the child’s well-being is more closely intertwined with the parent’s welfare in these situations. In this case, the judge will examine evidence of economic benefits, availability of extended family, and the desire to relocate

What are the benefits of choosing mediation over litigation in a divorce?

David M. Gabriel & Associates

When most of us think of divorce, we think of custody battles, endless legal filings, and costly court proceedings. The whole process of divorce can seem more daunting, and perhaps even more painful, than the emotional aspects of a marriage’s dissolution. But what if there was another way? Another, more humane, more gentle, less expensive way? There is: mediation. Not every divorce is contested. If both parties agree that the marriage should end, it is a much simpler process than when one seeks to prevent the divorce, or when it is necessary to assign fault to one partner or another. What remains for the spouses is to agree on the division of property, alimony allocation, and child custody arrangements. By meeting with a divorce mediator, such as one of our experienced family law attorneys, couples can work out the terms of their divorce face-to-face. The mediation process can save divorcing couples time, money, and heartache. Once an agreement is reached by both parties, an attorney can help with filing a petition for divorce with the courts. The court will then review the property distribution agreement signed by the divorcing parties. Once approved by the court, the divorce will be final. The whole process from petition to grant of divorce could be only a month, as opposed to a months-long legal battle. If you believe that divorce mediation is right for you, call our office today to arrange a consultation.

Massachusetts Law: Divorce, Custody, and Child Protection

David M. Gabriel & Associates

Massachusetts General Law (MGL) 208 covers divorce. This chapter of the laws of the Commonwealth describe everything from the definition of divorce to alimony, child support, and custody issues. Section 31A pertains to visitation and custody in the best interest of a child and covers abuse of parent or child. The best interest of the child is the primary determining factor in awarding custody. An abusive parent may not be awarded sole custody, shared legal custody, or shared physical custody. Custody arrangements must be in the best interest of the child. If one of the parents in a divorce or custody dispute has a history of being an abusive parent, then the court may deny custody or visitation or place restrictions. The court may order supervised visitation for the abusive parent. The abusive parent may be ordered to attend a certified batterer’s treatment program. They are often ordered to refrain from alcohol and other controlled substance during and up to 24 hours before a scheduled visitation. They may also be restricted from overnight visitation. The court may impose any other condition to provide for the safety of the child. Restraining orders are often issued when there is a request for protection and there is concern for the safety of one parent and/or a child. The mere existence of a restraining order (209a) does not serve as proof of abuse or define a parent as abusive. Evidence must be presented that shows a pattern or serious incident of abuse has actually

divorce

Don’t Be Blindsided By The Division of Marital Property in Your Divorce

What is the difference between a fault and no-fault divorce?

Protecting Assets in a Divorce

I was married and last lived in Massachusetts with my spouse but do not live in Massachusetts now, can I get divorced in Massachusetts?

I’ve been estranged from my husband and want to remarry. Will Massachusetts grant me a Bifurcated divorce?

How do courts determine if relocation of a child to another state during a divorce is acceptable?

What are the benefits of choosing mediation over litigation in a divorce?

Massachusetts Law: Divorce, Custody, and Child Protection

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Categories

TAGS

TAGS

David M. Gabriel & Associates

Is Ready to Help You

Main Office

Salem Office

Burlington Office

Life Complicated? We Can Help

Life Complicated?We Can Help

Life Complicated?
We Can Help