Q. After 15 years of marriage, my husband and I are getting divorced. We have no children together, but my daughter was 10 when we married. We each had mortgage-free homes before we married which we still own, although mine now has a small mortgage that we took out to help my daughter pay for college. I have been paying it back from my earnings.
We never merged our finances. He paid for his house and I paid for mine. We live in his house in Winchester during most of the year. I am a landscape designer, and I have created and maintained extensive gardens in both places. My beach house on the coast of Maine is really a cottage where we stay during the summer. We recently renovated the kitchen and all three bathrooms in Winchester. My cottage was to be next.
My husband earns much more than I and has added well over $1 million dollars to his retirement account during our marriage. I earn enough to pay my expenses but not enough to save for retirement or to pay my share of college. He offered to share what he added to his retirement with me if I agree we each keep our own houses and walk away. He says that is the best I will do in court.
Is he right?
A. You need to know what he is asking you to walk away from. You need to value the houses. If you can agree on a joint appraiser, hire one qualified real estate appraiser to value both houses. The value should be as of the date of marriage and the current value. That way you can calculate the increase during the marriage. Because you and your husband lived in both homes during the marriage, and you added sweat equity to both, the judge should find that the properties were woven into the fabric of the marriage and, at the very least, divide the increase in equity in the homes at the time of divorce.
If your husband refuses to jointly appraise, that should tell you up front he is trying to get away with something. Hire your own appraiser to appraise both houses at both dates. Then exchange appraisals. Do not be surprised if his appraisal shows a loss in value or a very small increase to his home and a larger increase to yours. Winchester homes steadily increase for many reasons, including proximity to Boston, train access, and good schools. The recent renovations only add value. You can ask the appraisers to talk and try to agree on the number. If his value is low, offer to buy his house for the value he says it is now worth – you can always turn around and sell it for the real value.

Q.My husband and I have been negotiating our divorce for the last 9 months using a mediator.  We have two kids and a lot of real estate. We finally reached and signed an agreement. We were on the verge of signing the rest of the joint divorce paperwork when I got a shocking call from the mediator which I am still having trouble understanding.
It seems my husband was married before he married me, something I did not know, and that we were married during the nisi period.  The mediator says this means what I thought was a 12 year marriage was not real. I don’t understand what a nisi period is or how it is possible we are not really married.  What can I do?

A.The nisi period is a 90 day waiting period after the parties appear in court for a divorce hearing.  The idea is to give the parties time to make sure they don’t want to change their mind and stay together – sort of a legal cooling off period.  From a legal perspective, there are two important points during that period. Because the couple are still legally married – (1) they can still file joint income tax returns during that period and (2) neither party can marry someone else.  If the mediator is right and your husband did marry you during the nisi period, he was legally married to someone else at the time of your wedding thus rendering your marriage void.
You have a signed agreement which is a contract.  Arguably your contract is enforceable regardless of the legality of your marriage.  Make sure your agreement contains the fairly standard clause which states if any part of your contract is deemed invalid, the remainder of the agreement is valid.  Assuming it does, you should take the position that your contract is enforceable and you will operate according to its terms.

If your husband is cooperative, you can go the route of filing a complaint for custody in the probate and family court instead of the divorce complaint and ask that the parenting plan stated in your separation agreement be incorporated into a judgment in the custody case.

The complicated piece involves the clauses of your agreement which are no longer enforceable.  In a divorce, division of the marital assets when one party has to transfer property to another is not a taxable event.  If you are not married, there may be tax consequences to your property division plan. Also you may run into issues if you have been filing joint income tax returns.  You need to hire both a divorce lawyer and a tax lawyer at this point to help keep you out of tax trouble and possibly restructure the asset division in light of tax issues.

Because your “husband” was not honest with you at the time of the marriage and created this mess, you should look to have him pay the additional costs you incur in untangling his web.

Q. My wife and I are trying to negotiate our own divorce agreement. So far, after some tough conversations we agreed on an asset division. I have been very anxious over the parenting piece because I really want to have our 9 year old twin sons half the time but she is a control freak.

I asked her to make a schedule. She proposed our boys live with her during the week and with me on weekends (Friday afternoon to Sunday evening), during school vacations and all but two weeks of the summer with equal sharing of major holidays. She wants me to be solely responsible for hockey – the cost and getting them to practices / games. Some of their hockey is during the week so I will seem them during the week too just not have them overnights.

This seems unusually generous which leaves me wondering what I am missing here – do you see anything I am missing?

A.This is an unusual plan and, frankly, one a judge would never order short of an agreement. Your wife is essentially taking all of the “work” and giving you the “fun” time. However, if control is her thing, it may be more of an issue than you realize. She may not do well in unstructured fun time especially with active athletic boys. She has taken on very structured time with them where she can dictate what time they get up for school and after school she can set the routine of homework, chores, activities and bedtime. The routine and schedule may be more necessary for her than it is for the boys.

The only potential pit fall I see is the child support component. Ridiculous as it sounds, count the number of nights the boys will spend in each household in a given year under her plan. In all likelihood it is close to equal. But, if she has significantly more overnights you may find that child support is only calculated as flowing from you to her (i.e. hitting you harder in the wallet). If you have the same amount of time with the kids or close to it, child support is calculated as if it were flowing in both directions and the difference in the two numbers is what is actually paid.

Also, hockey is incredibly expensive and time consuming so look at the costs you would be taking on, especially if your boys play club hockey and compare that to any “extras” she is proposing she take on. It may be she has proposed this because she sees a financial advantage in doing so and it complements her control issue.

Bottom line, assuming you can afford it, sign the deal and skate your victory lap.

Q    I am in the middle of a nasty custody fight.  At the moment my Wife and I have temporary shared parenting of our children transitions happen when they get off the school bus. On Thursday when the snow storm hit, they were supposed to go to her after school.  There was no school. I offered to bring them to her at 8 AM when they would otherwise leave my house for school. Driving across town then would have been fine.

My wife works from home so she declined because she could not work with three kids under foot.  I assumed that was the end of the discussion and they would be with me until they went to school on Friday.  Not so. She began calling and texting at 3:15 demanding that I drop the children off to her at 3:30 when they would normally get off the bus.

On a good day it takes me 20 minutes to get across town to her house.  There was no way I was going to do it in a blizzard. So I refused. She somehow got her lawyer to send my lawyer a nasty email threatening contempt if I didn’t drive the children to her that afternoon.  Needless to say, I didn’t budge.

Should I be worried?

A    You should be worried, but not about a judge finding you in contempt.  Last Thursday the first major snow storm of the season hit Massachusetts forcing the closure of essentially all schools.  The fact that your wife wanted you to drive your children during the peak of blizzard like conditions speaks volumes about her intentions here.  The Governor asked all people to stay off the roads if at all possible. By asking you to drive the children across town to her, she asked you to put yourself and your children in harms way.  Not cool.

Your take away here is that she will not negotiate in your children’s best interests.  The goal here is to make you pay for whatever perceived wrongs you committed – even if that means using the children as a means to that end.  Negotiating your divorce is going to be an uphill for you. Your children will suffer the consequences so you need to be ready. Make sure they have someone to talk to whether it be a school social worker or an outside therapist.

If you are lucky enough to reach a full resolution of your divorce outside of court – make sure there is very tight language about just who is in charge in the event of unforeseen school closures or if a child becomes ill at school.  Not every case needs these provisions but yours surely will.

As for the threat of legal action here, if she presses forward and brings you to court on a contempt, you should welcome that appearance as the judge will get to see her true colors shining brightly – something that ought to help you in the long run.

Q    I heard the new tax law changed the way money put into 529 plans can be used.

While getting divorced, I wanted to be the trustee because my husband has a sketchy work history and I feared he’d use some or all of the 529 money for his own needs.

But, because my ex’s father put $200,000 into each of two 529 plans – one for each of our two children – my ex was permitted to have them in his name as trustee. And, back then, the law only permitted one person to control each account.

Currently we each pay half the expenses for our kids’ attendance at their private schools.  I agreed to split that expense now, knowing their 529 money should pay for most, if not all of their expenses for undergraduate college.

Does the new tax law impact my situation?

A    The answer depends on whether your separation agreement specified that the 529 money was to be used for the children’s college expenses. When you got divorced, the tax law permitted withdrawal of money from 529 accounts would not be taxable if the money was used to pay for college expenses.

The new tax law permits no more than $10,000 of 529 money to be used per year to pay for a child’s private or parochial elementary and high school education.

At the time you got divorced it was common for separation agreements to provide that: (1) the 529 funds could only be used to pay for the children’s undergraduate college expenses; and (2) both parents had to agree on what college each child would attend. In that way the wealthier parent would not be able to force the other parent to pay for a very or the most expensive college expenses.

The contract language – not the new tax law – controls how that 529 money can be spent. So if the agreement requires 529 money to be used for college expenses – but your ex used some of that money to pay part of your children’s private school expenses – you’d need to file a complaint for contempt against him. And, presumably, the court would order your ex to pay more than half money needed to pay college expenses.

What you won’t know until – and, if there is – a contempt trial is whether, as your ex is standing before the court, he then has the money to pay. If not, he cannot be held in contempt. But if he has the money, he should be ordered to then pay more than half of the college expenses. That way you’d have whatever financial obligation you expected when you signed the agreement.

Last, the new tax law eliminated the dependency exception. So if your agreement was partially based on you or your ex being able to claim both children as dependents, that may be enough to meet the material change in circumstances standard required to warrant a modification of your agreement.

Q    My Wife just filed for divorce and had me served.  We have two children, a house, plus retirement, bank, and investment accounts none of which are extravagant.  There are no affairs, no mal-treatment on either side – we are just two different people who seem to now want different things.

So far I called eleven different so-called good divorce lawyers. All of them said they had a conflict. I believe my Wife called to make be sure they’d be disqualified from representing me.

Is that a common tactic?

A    Stuff happens. And, you may never know if the calling was her idea or that of the lawyer she hired.

You need to make a list of and then call those 11 lawyers again. Tell each lawyer that you called eleven lawyers, each of whom said there was a conflict because your wife had already called them. Then ask each lawyer: (1) Did you actually meet with my wife; (2) Or did you talk with her via telephone; (3) Was there more than one conversation? (4) How long was each conversation? (5) Did you ask for a fee? And if so, do you charge and, if so, did she pay a consultation fee?  (6) Did she provide general or specific oral information to you or a secretary or paralegal? (7) Did she provide a detailed written narrative or other documents?

In order for a judge to find an attorney-client relationship was formed, your wife must prove three things.  First, she called each lawyer in order to establish an attorney-client relationship – which means the judge has to be convinced she didn’t call just to disqualify those lawyers. Second, she called mainly to obtain advice and assistance from each of those divorce. Third, each attorney has to agree that legal advice and assistance was provided to your wife.

So if your wife merely spoke with and left her name and number and some basic information with the lawyer’s secretary or paralegal, or with the attorney, no attorney-client relationship was formed.

If you hire one of those lawyers, you wife probably will file a motion to disqualify your lawyer. You’ll provide your list of all eleven-lawyers (actually 12 when adding in her own lawyer) and your other information when opposing her motion to disqualify. The judge has to conclude no attorney-client relationship was formed or that she maliciously talked with those lawyers to get them disqualified.

But do you want to spend $5,000 or more to keep the lawyer your wife is trying to disqualify? You can keep calling good lawyers until you find one your wife did not call. One thing is for sure:  she didn’t call all the “Super” divorce-lawyers because, I, for one, never talked to her!

Q    My life changed from nice to nasty. My husband and I have four children who are cared for during the day by a nanny. The nanny brings along her own child – whose father she said is her ex-husband.

Three weeks ago the nanny’s ex called and told me he divorced her because the father of her child is my husband. I confirmed that claim by using a drug store paternity test kits. But, so far, my husband doesn’t know what I know. But if I fire the nanny, she’d have no income and seek child support from my husband.

Any suggestions?

A    Race to the courthouse to immediately file your divorce and motions for temporary child support and alimony. Get the earliest hearing date. Your goal is to have the court order your husband to pay you child support before the nanny gets a child support order. If you’re first in line, the court will reduce your husband’s available income by the amount of child support he’s paying you.

Say nothing to your husband or the nanny. Be cool. Then two weeks before the hearing on your motions, serve your husband with the summons and other documents plus a demand for his financial statement.

In the meantime, you need to make sure you’ll have enough money to pay bills during the divorce case. So, before your husband is served and without telling your husband, you need to (a) move at least half – and maybe more – of the money now in joint savings and checking accounts into your new separate accounts; (b) move your valuable jewelry from the house to a new safe deposit box; (c) apply for your own separate credit cards; (d) make copies of the last three years tax returns, bank and credit card statements, bills for expenses (real estate tax, weekly shopping, clothing, life, health, and other insurance policies, etc.); (e) for obvious reasons, open a post office box in a nearby town and have all your mail sent there – not to your house; and (f) start looking for a new nanny.

If you have joint stock accounts instruct each company by telephone, email and certified mail that you no longer permit any transactions without your joint signature. And, if there’s a line of credit on your house, either close it or move the available money into a savings account for safe keeping. That way you husband can’t take that money and try to leave you with that debt.

Next, go to www.mass.gov/service-details/financial-statements. Determine which forms you’ll need to file. List every big and little expense. Then bring back up documents, including tax returns, to court in case your husband claims your expenses are inflated.

Last, if your husband seeks forgiveness, you could say no for two reasons. First, you didn’t conceive of having another child this way. Second, just as light travels faster than sound, he looked bright until you heard him speak.

Q    Twelve years ago, before marrying my current husband, we signed a pre-nuptial agreement.  This was a second marriage for both of us. We both agreed to waive alimony and to keep everything separate, except that out marital home would divided according to a formula. And, no children were born of our marriage.

I recently filed for divorce and requested enforcement of the agreement. My husband filed a counterclaim which also asked that our agreement be enforced. But we’ve not been able to agree on who owns what percent of the house. So I suggested we use a mediator.

In response his lawyer served me with about six inches of discovery requests including a demand for self-disclosure, interrogatories, a document request, expert interrogatories, a demand for my financial statement, and a notice of my deposition. This is shocking because I believed I could represent myself and we could jointly figure out who gets what percentage of the house.

What am I missing?

A    The formula for dividing equity in a house is usually based on the contributions of each party.

So, it makes sense that, at the time of divorce, each party produces their documents proving they paid money for the house, its upkeep, etc. Of course, using a mediator would probably be less expensive and more efficient. But, for reasons unknown to me, your husband’s lawyer choose to file formal demands for documents which, to some extent, he has a right to do.

He is entitled to see all documents – credit card and bank statements, etc. which support your claim for each monetary contribution you made to the purchase, maintenance, upkeep, and expenses of the home. And, vice-versa. Unrelated data can be redacted.

You should know that even in uncontested divorces, the court requires each party provide the other and the court with their respective financial statements. So that request was proper.

But – because he’s not contesting the validity of the agreement – the court should quash his demands for copies of your pay stubs, tax returns, retirement accounts, stock statements, credit applications. The court should also quash any questions more than thirty, and all questions which are irrelevant to money spent on the house.

You letter, asking these questions, demonstrates two things. First, you believe you’ll save money by not hiring an experienced family law lawyer. Second, you fail to grasp that, without that lawyer, you’ll be fighting in the dark without special night-vision glasses while trudging through a mosquitoe-invested marsh which has deep holes leaving you constantly be falling into in a location where your cell phone has no service.

I suggest you hire a lawyer. If not, since the Super Bowl is being played today, you may want to keep in mind something supposedly said – which I’ve gently edited – by Woddy Hayes, a great football coach at Ohio State: “There’s nothing that cleanses your [pocket book and your] soul like getting the [stuffing’s] kicked out of you.”