Q. I got laid off a year ago just after my ex and I were ready to sign a divorce agreement. I stipulated I would continue to pay alimony and child support as if my earnings stayed at the prior level for one year even if I had to pay out of assets. At the end of a year, I could ask the court for a modification and if I didn’t have a job or was earning less than before, my ex could ask the judge to attribute income to me.

I did get a clause that if there is a modification of my support it will be retroactive to the date I started my new job.

We are three months away from the one-year mark. I looked very hard for a job but the only jobs I have been offered are at half my prior income. I took the first one that seemed like a good fit and have continued looking for a higher paying position.

What is the best way for me to present my situation to alleviate my financial strain here?

A. Start now by gathering all of the evidence of your job search.  Make folders for every application you submitted, every Linked In post you made or responded to, every interview, every rejection letter or email, etc. See if you can find a recruiter who specializes in your field and if they have any job opportunities for you at your prior income. Keep records of all communications with the recruiter and all of the opportunities they have for you.

About a month prior to the one-year mark, find yourself a good family law attorney who will handle a modification action for you.  Provide the lawyer with all of your search efforts as that is the evidence you will eventually need to show the judge if your ex is unwilling to settle on a lower support figure.

At the one-year mark file for a modification of your support obligations citing the inability to earn at your prior income level and ask that the order be retroactive per your agreement. When your ex is served, have your lawyer send her a letter summarizing your efforts to become re-employed at your prior earning level.

Calculate the difference in what you paid in support over the last year and what you ought to have paid at your current income level. If the difference is more than you will pay in legal fees to litigate a retroactive reduction, maybe it’s worth the fight.  If the difference is similar or less, waive the retroactivity, settle and move on.

Email questions to whickey@brickjones.com

Q. I am learning that I fall into a large population of people who waited until after the holidays to start the divorce process. I have been calling around and can’t get an appointment with any of the divorce lawyers who my friends recommended. No one has new appointments this month and everyone seems really busy.

Is there a better time for me to do this?

A.  There is something to be said for the New Year’s resolution.  Some people resolve to get healthier, be a better friend, get a better job, etc. Others resolve to divorce their spouse in hopes of a happier future. These people have often been in a less than satisfactory marriage for some time.

Another subset of people have younger children and do not want to ruin the holidays for them, so they stay in a bad situation through the holidays in order to provide one more year of “happy memories” for their kids. What these people often do not appreciate is how perceptive children are. Kids know when something is not right and will likely sense the underlying tensions. They may look back on the last holiday season as a family and wish their parents had separated earlier so they could have had a happier holiday with two happy parents instead of one filled with uncomfortable exchanges and tension.

There are also those people who have started to feel less satisfied with their marriage and their feelings become exacerbated during the holidays. With the ever-present social media, we now scroll through post after post of beautiful families posing for holiday pictures, perfectly decorated homes, perfectly set tables and children in matching pajamas smiling in front of the Christmas tree. No one really lives in a perfect world.  But it is easy to let the stress of the holidays and the desire for perfection to lead people to believe something is wrong if their family is not so perfect.

If you fall into categories one or two, make the appointment with a highly recommended lawyer even you have to wait several weeks – you will probably need one eventually. If you fall into category three, take a step back and really think about why you are looking for a lawyer and whether looking for a therapist is a better first step.

Email questions to whickey@brickjones.com

Q. I keep hearing mixed things about whether Massachusetts now has the same law as other states about custody if you move out of state. I have sole legal and physical custody of my son and the right to move him to Rhode Island upon giving 30 days written notice according to my divorce judgment. I have had a terrible commute for several years but have been reluctant to move because my ex takes me back to court regularly making all kinds of crazy allegations about my parenting. The judge knows him so well at this point he regularly dismisses the cases and orders my ex to pay my legal fees. I don’t want to have to start over with a new judge in another state if I move. Is it now OK to move and keep my judge?

A. Unfortunately, the answer is no.  Massachusetts remains the lone holdout on passing the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The prior version often referred to as the UCCJA continues to be the law in Massachusetts. There has been a push by many bar organizations and advocates for well over a decade to pass the UCCJEA and this past fall the state Senate voted in favor of the bill for the first time. But, a bill needs to be voted favorably in both the Senate and the House and signed by the governor before it becomes law. The bill died in the House.  Presumably it will be re-filed, as it is every session.

For your situation, I understand wanting to keep a judge who knows the case and can easily resolve the issues. But judges do get moved around in Massachusetts from time to time so you may not want to make a major life decision solely based on having the same judge available for the next time your ex decides to drag you back to court.

If your ex has taken you back to court regularly over a long period of time, the docket will reflect his actions and, more importantly, the judge’s decisions and findings of fact.  You can register the Massachusetts judgments in Rhode Island. That way the R.I.  court will have a record of what happened in Massachusetts.

Also, if your ex takes you to court in Rhode Island he will have to learn how to navigate a new court with new rules.  He may find it harder to navigate a new system and finally let things go.

Email questions to whickey@brickjones.com

Originally Published: January 12, 2025 at 12:34 AM EST

Q. My ex filed a modification trying to get sole legal custody of our kids. She says we do not communicate and cannot make joint decisions. She just doesn’t want to communicate with me. The judge appointed a Guardian Ad Litem to investigate whether this change is good for our kids.

I have a meeting with the GAL in a few weeks. How do you recommend I prepare myself for the meeting?

A. First and foremost, copy your ex or her lawyer on all communications with the GAL so you are not accused of having any secret communications (unless it is merely scheduling the time/place for a meeting). This rule also applies to any documents you send to the GAL. Next, gather any written documents which back up your position in advance of the meeting with the GAL in an organized fashion.

For you, this would likely include email communications with your ex showing how you communicate when decisions need to be made for your children. Or, it may be that you use an app like Our Family Wizard in which case you can print the communication chains. If you are going to send an email chain or app conversation – send the whole conversation, don’t omit the parts you don’t like because that will give the wrong impression. Find as many examples you can of when you were able to communicate to resolve an issue, but also include instances of when you were not able to come to an agreement.

It is important that the GAL see the constructive dialogue. If possible, organize all of the documents you are going to provide into a book for the GAL with an index. Provide a copy of the book to your ex or her lawyer and keep one for your own use.

You should also include in the book things like the children’s report cards to show how they are doing in school or medical reports if there are any health concerns. If your children have an IEP, include the most recent IEP and recent annual reviews.

As you are pulling the documentation together, make a timeline for yourself with bullet points and notes of things that happened.  If possible, tie the timeline into the index in the book you are making for the GAL. Bring the notes you have made to the meeting for your own use (remember if you give the notes to the GAL you have to share a copy with your ex). The more organized you are the better it will go.

Email questions to whickey@brickjones.com

Q. My husband ruined Thanksgiving for our kids when he asked for a divorce the night before, then moved out on Thanksgiving day. While his decision was shocking, I am working on accepting it and we agreed to find a mediator to work with in January. We figured out a parenting arrangement that works for the kids for now. Despite wanting them for all of Christmas, I did agree he could have the kids until 10 p.m. on Christmas Eve.

But instead of going to his sister’s which we have historically done, he took our children to his pregnant girlfriend’s home where they met her and her children, and learned they will have a new sibling in a few months. They came home distraught and angry.  None of them want to see him anytime soon – especially now that they realize he chose a different family over ours.

He is supposed to see them next on New Year’s Day and when I told him he needs to give them time, he told me I am alienating them, and he will take me to court for custody. Will the judge give me custody because of his poor choices?

A. Sounds like your husband has completely moved on and expects, with the snap of his fingers, your children will too. A judge will not give you custody because he has moved on to a new family – there are many factors a judge will consider, although his recent conduct will be considered.  Hire a lawyer ASAP and file a complaint for divorce seeking custody, support and a division of your assets.

To some extent the age of your children will dictate how this plays out. If they are teenagers and refuse to see him, their voices will be given more weight. If they are young, they will have very little say in the outcome but that does not mean he can force them into a new family on his timeline either.

Once you hire a lawyer, you should file a motion for the appointment of a Guardian Ad Litem to investigate what parenting plan is in your children’s best interest. The GAL will speak with your children and that is how their voice will be heard by the court. Meanwhile, ask him to agree to enroll the children in therapy.  They have had a shock which they need to process. If he does not agree, file another motion asking for temporary sole legal and physical custody citing his refusal to get them therapy as his inability to make decisions in their best interests right now.

Email questions to whickey@brickjones.com

Q. My husband and I committed to an amicable divorce. We  reached an agreement for parenting our kids. He stayed in our home and I moved out close by to an apartment which I prefer because of the huge yard with accompanying maintenance. We split time with the kids equally and I continue to pay half the mortgage because we have not yet worked out the asset split or support. We did agree on the value of the house. My lawyer told me I have to continue to pay half the mortgage because it is a joint asset.

My husband fired his third lawyer and hired the fourth in July. He is also suggesting we choose a new mediator because his new lawyer does not like the mediator we have been working with for the last three years. His lawyer has been traveling or otherwise unavailable to meet with us and the mediator.

How much time is reasonable to expect his lawyer to become available and should I agree to change mediators? My lawyer is getting irritated by my patience.

A. Your lawyer is right to be irritated. Do not change mediators but, rather, authorize your lawyer to file for divorce on your behalf. Three years is not a normal period of time to mediate, especially where you continue to pay for half of his housing expenses. He isn’t paying half your apartment rent is he?

He is on his fourth lawyer because he is shopping for someone who will give him the advice he wants to hear.  He is also dragging this out, so you continue to pay half of his housing expenses.

Filing for divorce does not mean you want a fight. It does not mean you have to quit mediation. It does mean he will have to begin to move things forward. Once you file, timelines get established.  Disclosure is required and financial statements will be exchanged. A discovery deadline will be set and a pretrial conference scheduled. Your goal will be to finalize the agreement by the time of the pretrial conference date which is typically six months after you file for divorce.

Once he becomes aware that you have filed, he will have two choices, either commit to the mediation process and get it done or start discovery. If he does not re-engage with mediation quickly, your next step is to have the house appraised – three years later it is worth more and you are entitled to half the increased value especially where you continue to share the cost.

Email questions to whickey@brickjones.com

Q. In April when my son and I were here for school vacation visiting my sister and her family, my son discovered my husband was having an affair.  He showed me the texts that somehow uploaded to his iPad. My husband and I had a big fight, and he told me to stay with my sister. I did. I enrolled our son in school here and he is doing well. My husband and I have been doing virtual marriage counseling for several months and he came for Thanksgiving. I thought we were doing well and was considering making plans to go back to Connecticut.

Over Thanksgiving, my husband dropped the bomb that he just learned the woman he had the affair with was pregnant and having the baby. I am not sure I can get over this blow.  Apparently, he expected me to react differently and come home anyway. I told him I was not going to do that and now he is threatening to file something in court saying I kidnapped our son. I don’t want to put him in the middle of this, but he is 14 so I guess he can testify that I didn’t kidnap him.

What are my options?  I know I can’t file for divorce yet because I’ve only been here for seven months, but I don’t want our son ordered back to Connecticut.

A. You actually can file for divorce and seek custody and child support right away. Typically, you need to live here for a year to file for divorce but if the irretrievable breakdown of your marriage happened in Massachusetts when at least one of you was living here, you can file for divorce before the one-year mark. Ultimately, if he objects to jurisdiction claiming he never lived here, your asset division will need to take place in Connecticut.

Your son has been here for more than six months meaning Massachusetts can now issue orders for his custody and support.  As part of the divorce complaint, ask for custody and support for your son.

Your son will not be asked to testify. But if your husband objects to his staying in Massachusetts, the court can appoint a Guardian Ad Litem to interview your son and others and make a recommendation on what parenting plan serves his best interest. You may be accused of alienating your husband from your son if their relationship is not good. I highly recommend you get your son a therapist.

You should hire a divorce lawyer to navigate this.

Email questions to whickey@brickjones.com

Originally Published: December 15, 2024 at 12:12 AM EST

Q. My wife and I have a very amicable divorce. We are equally sharing our kids, divided all of our assets equally and earn the same income so neither of us is paying support – we are just splitting expenses equally for the kids including the family health insurance.

I think we did all of the paperwork properly, but our filing keeps getting rejected. There was something about a missing guideline report, but I can’t figure that out. There was also something about my wife’s name being listed wrong on the paperwork. She took my name when we got married and still uses it on everything.

Can you give me some guidance on this or do I need to go to the court with my wife to try to sort this out?

A. The easy piece is the guideline. Regardless of whether child support will be paid, you need to complete a child support guideline worksheet and file it with the court when you have minor children. Chances are the worksheet will result in one of you being obligated to pay child support to the other in some nominal amount per week because of the health insurance cost.

You should also complete the child support deviation form checking the box for other and indicating why you are deviating. You can explain that you have the same incomes, are equally sharing the children’s expenses and have an equal parenting schedule. At the hearing the judge will make sure you each understand the waiver and assuming you do, in these circumstances, the deviation should be allowed.

As for the other issues, I highly recommend everyone filling out divorce paperwork pull out a copy of the marriage certificate and read it carefully. The courts carefully compare the marriage certificate to the divorce paperwork. If your wife did not indicate on the marriage certificate an intention to take your name post-divorce but later did so anyway, the court may question her name at the time of the divorce. I recommend listing her name as the married name she uses with an “a/k/a” and listing her prior name.

Finally, make sure all of the name spellings, including the use of middle initial or not, matches the marriage certificate on each form you file if you want to avoid further rejection.

Email questions to whickey@brickjones.com

Q. Our divorce agreement says that I get Christmas Eve and Christmas Day each year and my ex gets the first two nights of Hanukkah. My family lives in upstate New York. I wanted to move home after the divorce but as part of the compromise for staying here, I get to take the kids to New York each year for the winter school break so I can see my family over the holidays. No one anticipated Hanukkah starting on Christmas Day.

My ex insists that his two nights of Hanukkah trump my Christmas travel and says I can’t travel to New York this year. My mother has cancer and there is no guarantee she is still alive next year, so I don’t want to give up my trip.

I offered to come back earlier than usual to give him the last two nights of Hanukkah instead of the first two nights. He is insisting on the first two despite my mom’s health. He said if I go anyway, he will have me arrested in NY. Is he right?

A. While it is unfortunate no one looked ahead when the agreement was drafted to see if there was ever going to be a conflict between Christmas and Hanukkah, that does not mean his position is right. Since you have parenting time on Christmas Eve, he cannot prevent you from leaving for New York that day. He cannot have you arrested because the agreement gives you permission to travel. Worst case scenario, he might claim that you have kidnapped the children. So, bring an attested copy of your divorce judgment and separation agreement with you to New York just in case the police end up on your doorstep.

The more likely scenario is you will come home to a contempt summons. If that happens, you will need to go to court and answer for your decision. It seems to me, given the health of your mother and the fact that you negotiated for the right to take your children to New York every year for Christmas, you will not be found in contempt. But, of course I am not the judge. I would recommend you follow through on your offer and return in time for him to have the children for the last two nights of Hanukkah so you can at least tell the judge you tried a reasonable accommodation.

You should sit with a calendar and map out the next several years. If you see that Christmas and Hanukkah conflict again, you should file a complaint to modify holiday parenting time well in advance of the next controversy.

Email questions to whickey@brickjones.com

Q. I have been working with my lawyer’s paralegal for several weeks to do my financial statement for our support hearing in a few weeks. It was explained to me that I would sign it and then my lawyer would sign it before filing. My lawyer said he will not sign my financial statement the way it is currently prepared. He also said I might have to find a new lawyer.

I cannot believe he would treat me this way and I do not agree to go find a new lawyer. I have spent a lot of money and I deserve to be represented at the hearing next month. Can I make him represent me at the hearing? What happens if he tries to back out?

A. The concept behind the financial statement form is to give the court a true and accurate picture of your finances. The client is required to sign it under the pains and penalties of perjury. The form is so important that the lawyer is also obligated to sign the form attesting to the fact that the lawyer has no reason to believe anything contained on the financial statement form is inaccurate. If your lawyer is telling you he cannot sign your financial statement, that tells me that you told him something that you are not reporting on your financial statement. Your lawyer is an officer of the court and is not going to risk his license to practice by signing a financial statement he knows is inaccurate.

My best advice is come clean with whatever you are leaving off your financial statement. Otherwise, you are taking a huge risk, and no one is going to want to help you when it eventually comes to light that you filed a fraudulent financial statement.

If you are unwilling to be honest, the worst thing you can do is insist your lawyer represent you at the hearing. If you present a financial statement that you have signed but your lawyer has not, the judge and your spouse’s lawyer are going to know what the problem is, and it is not going to go well for you. If you are still unwilling to correct the financial statement, you are better off letting your lawyer withdraw and finding new counsel or representing yourself at that hearing. No good will come of lying on your financial statement and filing it without your lawyer’s signature.

Email questions to whickey@brickjones.com

Originally Published: November 24, 2024 at 12:16 AM EST