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Divorce
Divorce paperwork is rejected by court
Q. My husband and I worked with a mediator to prepare our divorce paperwork. I am taking a job in Australia in May. We have been separated for the last 10 years and only lived together for two. He has a house in Plymouth that he bought after we separated. I have a house in Fairhaven which I bought after we separated.
Our paperwork was rejected by the court. They said we filed in the wrong county, and we didn’t properly divide our assets. We don’t have a ton of money and didn’t see the need for lawyers because we agreed to everything. I don’t know how else to get divorced and I really can’t just come back for a hearing once I leave and start my job in Australia. What do you suggest?
A. Without seeing the agreement, I can only answer based on assumptions. The rejection based on wrong county could have been because you last lived together in Plymouth County. If you both live in different places but one of you still lives in the same county where you last lived together, that is where you should file. That being said, if you last lived together in a third county, you can file in any one of those three counties. There is no requirement to file electronically so you should walk the documents in next time and speak with someone in the Registry to ensure you are not rejected again.
Assets need to be divided equitably which does not necessarily mean equally. If you specifically state in the agreement that you keep everything in your name and he keeps everything in his name, that should suffice. If your agreement does not specifically list out the kinds of assets you each have and specifically waive your interests in each other’s holdings, you can edit the agreement to include those details. The length of marriage and separation, should lead to a conclusion that each of you keeping what’s in your own name is fair and reasonable.
You don’t need to hire lawyers to navigate this. If your papers are rejected a second time, ask to see the volunteer lawyer for the day to look over your paperwork for further tips. If the hearing date is after your move, just ask for a Zoom hearing.
Email questions to whickey@brickjones.com
Get your divorce paperwork in order
Q. My husband and I are finishing up our divorce agreement. We have been working with a mediator. He said once everything is signed, we need to file it with the court and get a hearing date. My friend told me she was in court last week and some poor woman went to the clerk’s office and begged for help filing her divorce. She was repeatedly told she had to e-file it and the woman was saying she had e-filed and it was rejected twice and she just wanted to be divorced already.
I am really not so good with technology and can only imagine I will be that woman. Do you have any tips on how I can do things right the first time? And can you tell me what happens after we file?
A. First of all, you do not have to e-file your paperwork but many people prefer to do it that way. You can take your documents and walk in to the court clerk’s office with a money order or bank check for $215 (that is the filing fee for a joint petition for divorce where you do not need a summons). They do not accept personal checks but most, if not all, accept credit card payments. You can also send the court all of the papers and your payment by mail, Federal Express, courier or any other such delivery method you can think of.
If you want to electronically file your documents, you need to upload them in a specific order for acceptance. Assuming all of these forms are necessary for your case, the order should be as follows: Joint Petition for Divorce, Marriage Certificate, Form R 408, Affidavit of Care and Custody, Affidavit of Irretrievable Breakdown, Separation Agreement, Financial Statements and Child Support Guidelines Worksheet.
Once your documents are accepted for filing you will get a notice of a hearing date. Some judges are still hearing uncontested divorces over Zoom, others want you to come in person. Either way bring a copy of your paperwork with you so if the judge has a question you can refer to the papers if you need to.
The judge will ask you a series of questions including whether you read and understand the agreement, if you feel it is fair in your circumstances, and if anyone forced you to sign.
Email questions to whickey@brickjones.com
Brick Jones McBrien & Hickey Wins Expertise Award for Best Divorce Lawyers in Newton
Expertise.com along with data partner LexisNexis reviewed over 400 Boston area law firms with their goal of connecting people with the best local experts. They scored Divorce Attorneys on more than 25 variables across five categories. Through a database search and customer referrals they came up with an exhaustive list which they then analyzed and reviewed.
The providers are judged on five final criteria. First, they are measured on their availability; both public databases and customer referrals are used to collect an exhaustive list of local businesses, checking on their availability and service areas. Second, the providers are measured on their qualifications. Do they have Accreditations, Awards, and Licenses? The business’ qualifications are reviewed and providers are selected who have gone above and beyond to educate themselves in their area of expertise. Third, the provider is judged on its reputation, Public records and information are scoured to determine their reputation. Every provider is analyzed based on the number of professional databases reviewing them, their average review score, and the volatility of their ratings. Fourth, the provider is judged on its experience on their primary area of expertise, the variety of services they offer, and their years of experience. The fifth and final measurement is professionalism. Mystery shoppers call each company, identifying themselves as potential customers, to gauge knowledgeability, friendliness, and professionalism.
Brick Jones McBrien & Hickey is a top ranked Boston area law firm with experienced attorneys who have the passion and skill to navigate the complexity of a divorce.
Attorney Ana E. Schwarz quoted in Massachusetts Lawyers Weekly – Stock options not factored into husband’s alimony obligations.
Stock options not factored into husband’s alimony obligations
Didn’t count as shareable ‘bonus’ under separation agreement
By: Eric T. Berkman September 23, 2022
The Appeals Court has found that a former husband’s stock options did not constitute “bonus” income payable to his ex-wife as alimony under the couple’s separation agreement.
The agreement, merged into the divorce judgment, obligated defendant Andrew Jones to pay plaintiff Lisa Jones 31 percent — 15 percent as alimony and 16 percent as child support — of the gross amount of “any manner of bonus” he might receive from his employer.
The Appeals Court noted that the case illustrates the complexity of executive compensation schemes and the importance of precision in drafting separation agreements.
Though the separation agreement did not explicitly define what counted as a bonus, the husband took a hard line during negotiations against including interest in stock options earned post-separation. He also apparently insisted he would only pay alimony and support on cash bonuses.
After the divorce, the husband received $1 million largely attributable to the exercise of stock options. The wife unsuccessfully sought a declaration in Probate & Family Court that it should be treated as a bonus and argued on appeal that the trial judge erred, given that the employer had initially described the payment as a bonus before revising the corporate resolution approving the payments.
The Appeals Court disagreed.
“[I]t is the intent of the parties to the divorce, not the intent of the company — or even the labels attached to various forms of compensation by the company — that ultimately governs,” Judge Mary T. Sullivan wrote for the panel. “In this case, after a careful and thorough review, the [trial] judge found that by referring to ‘any manner of bonus’ the parties did not include stock or stock options in the definition of ‘bonus.’ That finding was fully supported by the evidence and did not constitute an error of law as to the definition of ‘bonus.’”
The court nonetheless remanded the case to consider income from the exercise of stock options in determining the husband’s total income for purposes of child support.
The 28-page decision is Jones v. Jones (and a consolidated case), Lawyers Weekly No. 11-091-22.
‘Thoughtful analysis’
Gayle Stone-Turesky of New Bedford, who represented the husband on appeal, said the decision highlights the importance of clear drafting.
“You need to do that in whatever you do, but it’s particularly important in areas like executive compensation, which can mean so many different things to so many people,” she said.
The wife’s appellate counsel, Richard M. Novitch of Boston, who was not involved in drafting the underlying agreement or any of the litigation at the Probate Court, said the case highlights the “endless and ever-changing permutations” of executive compensation.
“In Jones, language that appeared open-ended — ‘any manner of bonus’ — was actually purposefully restrictive.”
— Ana E. Schwarz, Needham
“What might be called a stock option today might be called something different two years from now,” Novitch said. “Trying to draft an agreement is like trying to follow the bouncing ball. You never know what the terminology will be year by year.”
Needham family lawyer Ana E. Schwarz said the case reiterates that when an ambiguity arises in a separation agreement, the Appeals Court will consider extrinsic evidence to determine the intent of the parties.
“In Jones, language that appeared open-ended — ‘any manner of bonus’ — was actually purposefully restrictive,” Schwarz said. “As attorneys, when drafting, we have to take into consideration the interplay between the interpretation of language in the context of underlying legal standards, the facts of a specific case, and the public policy behind Massachusetts laws.”
Jason V. Owens of Hingham said the decision demonstrates how, after the Supreme Judicial Court’s recent seismic Cavanagh v. Cavanagh decision, parties may define what constitutes income for alimony purposes, but they do not have the freedom to define income for support purposes, even when the parties’ combined income exceeds the presumptive $400,000 limit of the child support guidelines.
In Cavanagh, in addition to requiring the separate consideration of alimony and child support in every case, the SJC voided a provision in a divorce agreement stating that income from a husband’s second job would not be factored into his support obligations. Similarly, in Jones, the Appeals Court found that while a husband’s stock options did not count as a bonus for alimony purposes, they should still be factored into his total income for purposes of child support.
“Prior to Cavanagh, the Appeals Court would have accepted the judge’s decision not to order child support on the father’s stock options as a reasonable exercise of the judge’s discretion not to order child support on income over $400,000,” Owens said. “Post-Cavanagh, new and arguably duplicative steps are required at every point in the process, from negotiating an agreement to entering judgment to appeals.”
‘Any manner of bonus’
When the parties divorced in 2006, the judgment incorporated their separation agreement, which provided that Andrew would pay $900 a week in alimony and $334 in child support.
The agreement also called for Andrew to pay additional child support and alimony equivalent to 31 percent of the gross amount of “any manner of bonus” paid by his employer, with 15 percent designated as alimony and 16 percent designated as child support.
During a lengthy negotiation over the terms of the separation agreement, Andrew apparently objected to including in the bonus provision any interest in stock options granted after separation. He further rejected proposals from Lisa that she receive a percentage of any future “income allotment” as child support and that she receive a percentage of “any manner of bonus, incentive payment or other type of lump sum payment” by his employer.
Andrew apparently reasoned that options granted or exercised post-separation were earned by him alone and were not attributable to the marriage.
The final language in the separation agreement did not specifically explain what the term “bonus” did or did not include.
A year after the divorce, Andrew took a job with Integrity Interactive Corp., accepting $200,000 in annual salary, a bonus of up to 40 percent of his salary, and incentive stock options.
The options were subject to an accelerated vesting schedule should Integrity be sold or merged. Andrew was required to exercise those options within three months of termination of his employment.
In 2010, Integrity’s CEO increased Andrew’s compensation to make up for a perceived inadequacy in his initial grant of stock options.
Integrity was in the process of being sold, preventing the grant of additional stock options, so the CEO proposed “additional compensation” in the form of a severance package, given that Jones would lose his job after the sale.
The package included a $1 million “one-time severance payment,” minus all proceeds Andrew would receive from the exercise of his stock options, in order to “true up” any deficiency in the original grant.
When the sale went through, Andrew received $1 million in income: $628,423 from the exercise of his options and $371,457 in “severance.”
Jones v. Jones (and a consolidated case)
THE ISSUE: Did a former husband’s stock options constitute “bonus” income payable to his ex-wife as alimony under the couple’s separation agreement?
DECISION: No (Appeals Court)
LAWYERS: Gayle Stone-Turesky of Wilkinson & Finkbeiner, New Bedford; Judith McKinnon of the Law Office of Roseanne Klovee, Stoneham; Svana M. Calabro of Sugarman, Rogers, Barshak & Cohen, Boston (husband)
Richard M. Novitch, Dea Ilia Coka and Gary O. Todd, of Todd & Weld, Boston (wife)
Another employee received cash only in an arrangement described as a “bonus,” and the initial resolution authorizing Andrew’s payments described his package as a “bonus” as well.
The CEO, however, requested that the resolution be revised to label Andrew’s payment as “additional compensation” and later testified that that was necessary for tax and governance reasons.
In August 2011, Lisa filed a declaratory action seeking a determination that the $1 million was indeed a bonus under the separation agreement.
After extensive litigation, the case went to trial in May 2017.
In May 2019, Probate & Family Court Judge George F. Phelan issued findings that the bonus provision did not apply to stock or stock options. He also retroactively terminated Andrew’s alimony obligation while prospectively increasing his child support obligation.
Lisa appealed.
Parties’ intent
The Appeals Court noted that the case illustrates the complexity of executive compensation schemes and the importance of precision in drafting separation agreements.
However, Sullivan wrote, “in a divorce proceeding, our statutory guidepost is G.L.c. 208 [the divorce statute], and it is that statute and the intent of the parties to the separation agreement that matters.”
Here, Sullivan continued, evidence presented at trial — particularly evidence that Andrew rejected any proposals to include stock options or preferred shares in the purview of the bonus provision — demonstrated that Andrew did not intend for stock options to be construed as a bonus in the separation agreement.
“[The trial judge] also found that the husband did not manipulate the terms of his separation from Integrity for purposes of alimony avoidance,” Sullivan observed. “The judge’s factual findings were supported by the evidence, and he did not err in his ultimate construction of the separation agreement.”
Still, the court found that income from stock options should be considered as part of Andrew’s income for child support purposes.
“Accordingly, it is necessary to remand this matter to permit the judge to explicitly consider all the husband’s income in awarding child support, and to reconsider whether that award of child support should apply retroactively or prospectively,” Sullivan wrote.
Multiple divorces make asset split messy
Q: My husband is a Boston Police officer and I have been at home raising our three kids for the last 10 years. I recently discovered he is having an affair and started talking with him about getting divorced. He doesn’t want another divorce and swears he will end it with his girlfriend if I will consider counseling and figure out a way to put this behind us.
I want to be smart about this. I know he wants to retire in another 10 years when he can maximize what he gets from his pension and focus on his side business — small construction jobs. Also, by then his child support and college payments for his older son will be over. He keeps telling me he doesn’t want a second divorce for religious reasons. I think he doesn’t want to divide his pension again. I’m wondering if it’s better to try to work this out and give it more time until his pension is worth more. Then, if things still aren’t great, I can divorce him when the kids are closer to college age. Is there is any financial benefit to insisting on divorcing now?
A: Only you can decide whether you are able to try counseling and move on with your relationship. That is a deeply personal decision that is different from the financial question of whether it is better to divorce now or later. So, I will focus on the financial part of your question.
Before you get too excited about dividing his pension now or later, you need to get a copy of his first divorce and see if it was divided with his first wife. His pension can only be divided once. Assuming it was divided with his ex, you don’t get any of it from an asset division stand point. You can, however, use the income that flows from the pension when it is in payout status for purposes of calculating child support, alimony and college contributions for your children.
From a purely financial perspective, you do better waiting for him to retire and begin receiving that stream of income on top of whatever he makes from construction in retirement before filing for divorce.
Another point not to overlook is his current child support/college contribution order. When calculating the child support you would receive for your children, the support he is paying for his older son will be backed out of his income before support for your children is calculated. So, not only do you not get a share of the pension, you will receive less in child support than you will once that other obligation is finished.
Bottom line, if you can hold your nose and stick with the marriage for now, your bank account will thank you in the long run.
Email questions to whickey@brickjones.com.
Moving states impacts divorce process
Q: My wife and I are getting divorced in Maryland but agreed we would relocate the family to Massachusetts. Because we already filed in Maryland we are going to have the case continue in Maryland and just return for necessary hearings. However, we understand that once we are in Massachusetts for six months Massachusetts has jurisdiction over our children so we are not really sure what to do about this. Should we keep working with our mediator in Maryland or abandon that process and find someone to work with to try to resolve parenting issues in Massachusetts? If we get stuck now that Maryland no longer has jurisdiction what do we do?
Also, in Maryland my wife would not qualify for alimony. If the judge there decides she gets no alimony, can she reapply in Massachusetts?
A: The alimony piece is easy. If she asks in one jurisdiction and the judge turns her down, she does not get a second bite at the apple on moving to Massachusetts. Likewise, if she does not qualify for alimony in Maryland, she cannot come here and try to qualify so long as your divorce judgment says no alimony.
The child piece is a little more complicated. I assume your divorce petition includes a claim for determining custody and parenting time with your children. If so, a move to Massachusetts does not automatically transfer jurisdiction because there is already an action pending. If you resolve everything except for the child-related issues in Maryland, you can get your divorce and agree to transfer the issues relating to custody and parenting time to Massachusetts for determination as that is where everyone is now living. If you decide to do this, after your children have been in Massachusetts for six months, you can file a complaint for custody. If you have temporary orders from Maryland you can ask the court here to adopt them so the status quo is maintained until there is a final decision.
If you are making progress with the mediator you are using in Maryland regarding parenting issues, there is no reason to abandon that process. Zoom technology allows for remote mediation, which has become quite common and effective. However, if you are not making progress with your mediator in Maryland, you can use the move as a good excuse to start over fresh. Or you can bypass mediation altogether here and go to court to ask the judge for temporary orders. With the exception of one county in the western part of the state, there is no obligation to mediate parenting issues before bringing the matter before the court.
After 10 years, husband returns and wants money
Q: My husband walked out on me and our children ten years ago. He never paid a dime in support and the last 10 years were a real struggle. I got a much better job, worked hard, paid off the rest of our mortgage, and did my best to put our two kids through college. I never filed for divorce because frankly I didn’t have the money and I didn’t know where he was.
Now that the real estate market is hot and the kids are out of high school, I decided I want to sell the house. The problem is his name is still on the deed. I reached out to his family to see if someone could get him to cooperate. Of course, now he has surfaced and is demanding that I give him half the equity. This just seems so wrong. Do I have any recourse? Can I get retroactive child support, alimony and college contributions?
A: It will take court intervention, but you do have an argument to be made. The court will not order retroactive support or college contributions, but you were clearly the only one contributing to the marital estate during those 10 years of separation. So, you can argue that the marital estate stopped accruing when he walked out the door 10 years ago and failed to contribute anything from that point forward. You need to find someone who can do a retroactive appraisal of your house and testify to the court as to the value 10 years ago. You also need to get the records of your outstanding mortgage balance 10 years ago to determine the equity.
Don’t stop there, you should also try to get bank account records, retirement statements and credit card bills so you can show the little he should be entitled to. Then try to tally up how much you spent to support your children and keep the household going during that time frame. The more you pile on the more sympathetic your case is.
You will need to file for divorce and ask the court to enter temporary orders allowing you to sell the house. the net sale proceeds will need to be held in escrow for now. Unfortunately, this will tie up your share of the equity as well which will make buying something new difficult. But, on these facts, you can argue that you should get an advance for a down-payment on some other home if you cannot find a suitable rental situation for the time being It just might be hard to argue that he shouldn’t also get an advance.
Of course, you can also weigh the cost of legal fees and value of your time and maybe he will settle for a much smaller share of the home equity to walk away so neither of you incurs legal fees. While I know you don’t want to pay anything — your time and energy have a value — you just have to decide what it is.
Email questions to whickey@brickjones.com.
Travel points count as marital assets
Q: My husband worked as a consultant throughout our marriage, traveling extensively over the years. He was always allowed to keep all of his miles and points. As a result, he has the highest level status with many hotel chains and airlines and has over a million AmEx points. I want him to buy me out. I believe these are marital assets and we always planned to use all of these benefits when we retired to travel the world together. Now he will be taking the trips we always discussed with another woman.
My lawyer says that I cannot force these companies to divided points and miles in half because it is not their policy to do so. This seems so unfair. How do I find someone to testify about the actual value of these as assets? I want my husband to buy me out if they cannot be divided. This can’t be the first time someone has tried to argue these benefits are assets, right?
A: You are correct — these are valuable assets. But, finding a qualified expert to place a dollar value on the rewards is not going to be easy. I have never used such an expert and don’t know of one. But there are other ways to address equalization.
American Express will allow him to open a new account (on which he can add you as a cardholder) and have the points transferred to that card. You can structure an agreement in such a way that you each have to pay off your share of the use of the card on a monthly basis and you each get to use half of the points. You can even make it so that only certain types of things can be charged on the account such as travel then you can use the points for upgrades for your trips.
He can also agree to use half of the Marriott points and various miles to book rooms and/or flights for you (and your companions) until you have utilized half of the points. He will need to share copies of his statements for all of his rewards programs on a regular basis so you can ensure that you are receiving the benefits to which you are entitled. This request is sure to drive him crazy.
So, I also suggest you research where you can go, stay, etc. at today’s rates to use up half of the accrued rewards. Then figure out how much it will cost you to take those trips without any rewards staying in the same level accommodations and flying with upgraded seats. That way if he does not want to account to you for all of the rewards on an ongoing basis he can now agree to pay you the amount necessary for you to take all these trips. And, if settlement is not achieved, you have now done the research and can testify about the places you would go with your half and the actual cost.
Ex refuses to put house up for sale
Q: My ex was unable to refinance and buy me out of the house. Our divorce agreement says if that happens she has to list the house for sale. We really spent a lot of time on this provision because I knew this was going to happen. We had to agree on a broker and if we could not agree, a special Master was put in place to choose one. As I predicted, we needed the special Master — a former judge — to choose our real estate agent.
I signed the listing agreement with the broker chosen by the Master but my ex refuses. I don’t know what to do next — I am tired of paying all this money for her to just ignore orders. Is the Master’s report the same as an order? Can I file a complaint for contempt because she didn’t do what we were told to do? Is there any way to get her ordered to pay the Master? And if she isn’t out by the end of the school year, can I get the kids enrolled in the town I now live in so they don’t have to change high schools mid-year?
A: Often times a Master appointment includes the right for the Master to re-assess fees based on the conduct of the parties. If yours does, you should first go back to the Master and ask that all of the fees be shifted to your ex for her failure to operate in good faith. Where a Master has more time and fewer cases than the judge, your request may be better received there. Next, file the Master’s report with the court along with a motion to adopt it as a court order. Now you have a built-in fee shift and an order so you can now file a complaint for contempt. Ask for an order of legal fees for the contempt as well.
You are not going to get a change of custody or school system on a complaint for contempt for her failure to list the house for sale. But, you can also file a complaint for modification asking for an adjustment in the parenting plan and an order that the children go to school in your district. You will need to cite your ex’s failure to sell the house in a timely manner, which will then cause the children to change school districts mid-year, something that is not in their best interests as a change in circumstances.
But, a word of caution before you go to that extreme — if your ex is able to afford any housing in the current town she is likely to avail herself of that option so your children don’t have to change school systems in high school. If you want to avoid an unnecessary unsuccessful modification action, you should have a conversation with her first about your plans — that might be enough to light a fire under her feet for all purposes.
