My fiancé and I agreed to sign a pre-nuptial agreement before our upcoming wedding. I have nothing to protect. He has some family money and will inherit more someday. I don’t have a problem signing and agree it should all be his if we get divorced. I didn’t plan to hire a lawyer.
Then a friend asked me what happens if he dies. I assume I would inherit his assets if he dies before we have children and that I would share with the children if he dies after we have them. But, I figured I should ask you this question before I sign the agreement. Do I have anything to worry about?
You have a lot to worry about and should discard the concept that you can negotiate this on your own. You are fortunate to have a friend who is asking some questions. You need to hire an experienced family law attorney to represent you in this negotiation. If you don’t have the money to pay, ask your fiancé to pay, as he wants you to give up significant rights. Do this without delay as most lawyers will not represent you unless the wedding date is at least two months away.
Until recently, many lawyers took the position that it was not necessary to include “on death” provisions in pre-nuptial agreements and instead advised people they should create an estate plan after the wedding. That has never been my advice and a recent case confirmed my thinking.
While pre-nuptial agreements define what happens to assets in the event of a divorce, they can also provide at least minimum protections in the event of an untimely death of either party. Most people don’t want to think about their demise. Couples do not generally get married and make appointments with their estate planner for the next day or even the next year. The risk comes in to play if a pre-nuptial agreement defines all of your fiance’s property as his separate property and is silent on death provisions. The case law now says if defined as his separate property in a pre-nuptial agreement, his property would go to his estate and not to you, regardless of the fact you are married, because you agreed what was his stayed his as if you never married.
I always advise people to negotiate for on-death provisions assuming there is no divorce pending at the time of death. The agreement should be more generous upon death than it would be in the event of a divorce. What if his family money is used to buy a nice home that you live in — if he dies where will you live? What if you have children and stop working? Ask your lawyer to help navigate what is fair in your circumstances.
When I went to court in the spring, the judge ordered that my ex provide a phone for my 11-year-old daughter to talk and text with me. I am supposed to talk to her every other day. I live in Atlanta so I don’t get to see her often. The calls and video chats are important.
Once again, as soon as I went home, my daughter stopped answering my messages. I eventually called my ex and asked what happened. She said the phone was damaged and that I need to communicate using her phone. I don’t like to do that because she never actually lets us talk — she always just answers that Ali is busy.
We went back to court to review things last week. I wanted to show the judge all the WhatsApp messages that I send that she doesn’t answer or that she says Ali is busy. But security said I couldn’t bring my phone into the building. When we saw the judge, my ex brought her phone bills to show I didn’t call her. We go back to court in March. How do I show the judge that I really do try?
The judge should have recognized that her phone bills would not show WhatsApp messages but maybe you didn’t say you were using the app. Be sure to tell the judge all the important information next time you appear.
Some courthouses only permit lawyers to bring their phones into the court house. If you have a lawyer, you can ask your lawyer to hold your phone as “evidence” to show the judge. But, the better plan is to take screen shots of all of your WhatsApp or other texting messages and print them out for next time. Make sure the date and time are included in what you print — I’ve seen that part get cut off in the screen shot/printing process, which renders the information useless.
You should also take the texts and create a chart in which you show the date and time you texted in one column and whether you got a response and if so what it said in the next column. A chart would create a visual to show the judge how limited your access is. Add a column that totals the number of times you actually receive a reply from Ali as compared to the number of days you make the attempt and are either ignored or shot down. Attach the chart to the front of the printed screen shots so the judge has the “back up” for your chart.
If you make the chart, the next hearing should prove far better for you, and your ex will find herself at a loss for words.
My ex wife recently moved from Somerville to Hull. Our parenting plan required that I pick our daughter up on Friday evenings at her house at 6 p.m. and drop her off at school Monday mornings every other weekend. I didn’t mind doing all of the driving because I live in Arlington and work in Boston. I also saw her every Wednesday after school until 8 p.m. which I can no longer do every week because the drive is so bad.
I suggested that because of her move, she needs to step up and do the driving. She offered to meet me at the Braintree mall on Fridays but insists that I drive our daughter to school on Monday mornings because she will be late for work if she has to do the driving. Our daughter is only 8 so my ex has a neighbor watching her from 7:30 a.m. until she gets on the school bus.
My ex has given zero consideration for how late I will be for work or, more importantly, how early our daughter will have to get up every other Monday morning to fight rush hour traffic through the city and get home to Hull on time for school. I tried to talk her out of the move but she insisted her new husband’s home was much nicer than her condo and she needed to move in with him. She rented out her condo by the way.
Her decision to move from Somerville to Hull was a material change in circumstances warranting a review of your parenting plan. You can file a complaint for modification and, once you serve her, file a motion to change the driving responsibilities. A judge will likely require her to drive your daughter all the way to your house at least one of the transition days if not both.
It may no longer be in your daughter’s best interest to spend Sunday nights at your house. You have already given up most Wednesdays. If you also give up Sunday nights, that is six days per month you are missing because your ex chose to move. I don’t know what your summer and vacation arrangements are, but you should consider asking for more time during those parts of the year to make up for the lost time between you and your daughter during the school year.
If your ex is unreasonable about extra time over the summer, consider asking the judge to order her to move back to Somerville during the school week. If she still owns that condo, there is no reason she and her husband can’t live in two homes.
I’ve seen a lot of emails back and forth with my lawyer and my wife’s lawyer lately. My wife’s lawyer copies my wife on all her emails. My lawyer forwards emails to me after the fact. Several times my wife has hit “reply all” and copies my lawyer on emails. My lawyer then gets mad and tells her lawyer to make it stop.
I get that it’s annoying for my lawyer to continuously receive her “stream of conscious” emails but I don’t understand why he is making such a big deal out of it. Am I missing something?
You are indeed. There are a number of issues at play here. First of all, one of the most important things a client has during their case is the confidentiality in communications with their attorney. The last thing a lawyer wants to see is their client opening the door in such a way that communication with their client becomes “discoverable” by the other side, thus nullifying the privilege. What better way for your wife to open the privilege door than to openly send emails directly to your lawyer?
A huge problem with our electronic age is that everyone seems to want to operate at the speed of light while trying to multi-task. People do not pay attention to what they are doing and do not think through the consequences of careless actions. As a result, “reply all” mistakes happen frequently.
If you want to learn more about this issue, Google Superior Court case Charm v. Kohn. The court in that 2010 case issued a warning to litigants and counsel alike that using the reply all and bcc functions is risky business and may result in a finding that the attorney-client privilege is waived.
From that point forward, most lawyers I know became far more careful in how they convey information to their clients. The forwarding option is far better than the blind copy option because if the client hits reply all on a forwarded message, it will not go to opposing counsel. Arguably an attorney who is still copying or blind copying their clients on emails to opposing counsel is exposing themselves to an ethical complaint. It is just not a risk worth taking.
Your attorney is doing this the right way. He is getting frustrated because, aside from not wanting to read your wife’s stream of conscious emails, he does not want to be involved in the headache of arguing about whether she has waived her privilege if she divulges something valuable in one of those reply all emails. While it may seem like a good thing, strategically, to know what the other side is up to, the reality is most lawyers would prefer the other side to keep the privilege intact and learn things through proper channels.
My husband and I are in the middle of a difficult divorce. We cannot afford to keep the house and the court ordered us to sell it. There is a lot of equity and we cannot agree on how to divide it. My husband has been living with his girlfriend for the last couple of months. I need a place to go with our two kids and I owe my lawyer money. Because I haven’t paid in several months, my lawyer hasn’t been very responsive. I don’t blame her but I am having trouble figuring out my options.
My husband suggested we each take $15,000 now and put the remaining sale proceeds in escrow. I don’t really understand how that works. Also $15,000 isn’t enough — it will cover my lawyer’s bill but it will not leave us enough to secure our rental home. What are my options?
It is not unusual for a house to be sold mid-divorce when funds are tight. Typically if the parties cannot agree with an amount that will be advanced to each side, the court will entertain a motion for an advance. It sounds like you need more than the $15,000 he is willing to advance, which means you may have go to court. Ask your lawyer to file the motion so you have enough to pay her and move — when she hears you want to pay her, she is likely to respond quickly.
The advance does not have to be equal. He has a place to go — you and the kids do not. You should ask for an unequal advance because the kids need a roof over their heads and his girlfriend’s roof is not appropriate for you and the kids.
As for the escrow piece, it is not uncommon for one or both of the lawyers to act as escrow agent. A new interest-bearing bank account would be opened to hold the proceeds. The lawyer(s) would have signing authority on the account — not you or your husband.
People often feel uncomfortable with having their spouse’s lawyer act as escrow agent. You should know, an escrow agent has a fiduciary duty to the owners of the funds in the escrow account. It is like being a trustee of a trust. The lawyer could only withdraw funds or make disbursements when there is a written agreement signed by both parties or when there is a court order. If the lawyer acted in breach of this fiduciary duty and disbursed funds in some unauthorized manner, he or she would be subject to disciplinary action by the Board of Bar Overseers. Lawyers take this fiduciary duty very seriously.
My husband keeps telling me we need either a Guardian Ad Litem or a Parenting Coordinator to help us figure out our parenting problems. He wants to know which I would agree to using. I really don’t understand how these people are different and I feel like I hear friends refer to them interchangeably. I know what our problems are — we are totally different people. We have different parenting styles, don’t communicate well, even have different religions and holidays. How will these people help? Which one should I choose?
Generally speaking, it isn’t an “either-or” scenario. They are entirely different roles. A Guardian Ad Litem, or “GAL,” is either a lawyer or mental health professional appointed by the judge to investigate and/or make recommendations with regard to certain issues such as legal custody, parenting time or whether children should be permitted to relocate with a parent out of state. Once the GAL completes the investigation and writes a report, his or her job is done unless one of you later calls the GAL as a witness at the time of a trial.
A Parenting Coordinator on the other hand is more of a long-term person. The court will not appoint a PC, rather you and your husband would have to agree to hire one. PCs can also be either lawyers or mental health professionals. They should have you sign a contract spelling out clearly the terms of their appointment including duration of the appointment, powers you are granting them and how they are compensated.
The controversial part about having a PC is most are given decision-making power. You can think of the PC as a tiebreaker when you need one but some people complain PCs are acting like judges without being appointed by the governor. Also if they rule against you, their decision is generally binding until you get a court to reverse it. More often than not, by the time you file the paperwork to get in front of a judge the issue for which a PC has made a decision has come and gone. For example, a PC might decide whether your children will go to a religious event the other parent disproves of or on a big field trip out of state that the other parent believes the child doesn’t deserve due to poor behavior or grades, etc.
I do not have enough information about your situation to tell you which professional is right for your situation. What I can tell you is you seem to know the problems you and your husband have. If you can live with your differences and agree it is best for your children that they spend ample time with each of you, you do not need a GAL. Once you agree on the time your children will spend with each of you, a PC should be able to help you navigate the hiccups that will surely come up as life moves on.
I am struggling to understand why my wife is making the future alimony waiver such a big issue. We have been married for nine years and have three children. We are both teachers and do well as far as teachers go but that is partly because we tutor, coach and work at summer camps. We are trying to navigate the divorce process on our own because neither of us has extra money to pay lawyers.
I thought I read the alimony law correctly — that if one of us were to get alimony it would end after approximately 7.5 years. Our incomes are within $20,000 of each other so I am not sure why she thinks future alimony should be left open. It seems like she would only be entitled to about $6,500 per year if I continue to do all the extra work.
Am I misunderstanding the alimony guidelines or are we both just overthinking this?
Just because there is no alimony paid now does not mean things won’t change in the future warranting such an order. One of you could get sick and be unable to work; one of your children could get sick preventing one of you from working; one of you could have a career change and suddenly make significantly more money. It is hard to predict the future as you are signing an agreement today.
Take a step back and think about this from your wife’s perspective. You are both smart people and she probably also read the child support and alimony laws. Right now, neither of you qualifies for alimony from the other because, from the sound of it, your combined earnings are within the amount to be considered for child support only. For the alimony durational limit calculation, the years run concurrently with the years in which child support is paid. Seven and a half years from now, you still have three unemancipated children hence no alimony unless there is a change in someone’s career with significantly increased earnings. Meaning realistically, neither of you will ever qualify for alimony. While you are scratching your head trying to figure out why she wants a safety net in place that will probably never be used, recognize the safety net protects you too.
This issue is not something to fight over. Agree to waive past and present alimony and leave future alimony up for modification if there is a material change in circumstances. You can write into the agreement the durational limit on future alimony, if any, so there is no misunderstanding.
My ex is angry that I am happily remarried. She brought me back to court requesting that I pay more child support because my new wife is a successful engineer who runs her own business. Because we were both married before and both have children from prior marriages, we signed a prenuptial agreement. We keep all of our finances separate and don’t even file joint tax returns.
Last weekend when we got back from a long weekend in Maine to celebrate our first anniversary, we found a subpoena from my ex taped to the front door requiring my new wife to attend a deposition and produce all kinds of personal financial information.
Why should my wife be penalized for marrying me? Can I do anything to protect my wife from my ex?
You can hire her a lawyer to file a motion to quash the deposition subpoena and issue a protective order so that she does not have to show up for the deposition. The rules of discovery go only so far. It is not permissible to use discovery as a tool for harassment, which is what seems to be going on here. The motion to protect your wife from your ex’s fishing expedition is even stronger because of your prenuptial agreement — be sure to give the lawyer helping your wife a copy.
The child support guidelines contain a long definition as to what constitutes “income” for purposes of calculating child support. Contributions to a household made by a new spouse are not on the definition list. However, that does not mean your ex is completely barred from making an argument that your new wife’s contributions have raised the standard of living in your household to a level where you should pay more support.
If your children spend equal time in each household or otherwise significant time with you, and your children suddenly have a much higher standard of living in your home than in their mother’s home, the judge might be inclined to enter a finding that the children are living disparate lives and ought to have similar lifestyles in both households.
In that situation, the judge may find that your new wife is capable of paying substantially all of the household expenses and may deviate from the guidelines and order you to pay something more. However, under no circumstances should the judge consider your wife’s income as yours for purposes of running the child support guidelines. The case law says children should be supported by the financial resources of their parents — not their parents’ new spouses. If you want to read a case for yourself, google Cappuccino v. Cappuccino.
My sister and her husband divorced last year and share custody of their three young girls. My wife and I have maintained a good relationship with my sister and her ex. Recently my wife has raised concerns she thinks, based on social media posts, my sister is partying a lot. Her ex is not on social media so he wouldn’t know but my sister has a new boyfriend and they are very into the micro-brew scene. They are always on their beer app and she seems to be drinking a lot.
I am growing concerned for the kids. But, I am also worried if I reach out to my former brother-in-law, I am going to alienate my sister and cause a lot of trouble there.
You are in a tough position because if you alert your sister’s ex to your concerns, he might go right to court and ask for a modification of the existing parenting plan and raise allegations that your sister has a drinking problem. Raising this issue in court would likely trigger a Guardian Ad Litem investigation to determine (a) whether a problem exists, (b) whether the children are in any danger from her conduct and (c) whether he should have more of the parenting time. The children would be interviewed and, depending on their ages, likely asked difficult questions about their mom’s behavior. Maybe that is necessary, but maybe not.
Before you run to him, take a look at the social media posts for yourself. A beer app alone is not reflective of reality. If you play with the app, you will see by just clicking the “like” button, a social media post is created indicating that the person using the app is at that moment drinking that particular kind of beer. If your sister is into micro-brews and doing a beer tasting for example, it will look like she has actually consumed each of the samples on a larger scale, thus skewing the data. She could walk out of a tasting looking like she just consumed 18 beers when in reality she may have taken a sip or two of 18 types of beer.
Don’t just look at the beer app, look at her other social media posts. Does her Facebook or Instagram show pictures of her and her boyfriend at parties with beer in their hands? Do any of the posting dates fall on her parenting days? If yes, the combination of all the posts will be viewed in a negative light.
If the totality of the evidence looks bad to you, talk with her. See if she admits to partying on her parenting time. If after talking with her you are concerned for the kids, go talk with her ex. The safety of your nieces is far more important than hurting your sister’s feelings.