Attorney Maureen McBrien made oral arguments today before the Justices of the Massachusetts Appeals Court in 2023-P-0830 JUSTIN SMITH vs. MONIQUE ARMSTRONG. 

https://www.youtube.com/live/h39dxLMoTtg?feature=shared&t=6360

Q. I just had a horrible experience in court. My husband and I reached an agreement with our lawyers. Part of the agreement was that I would stay in our house until our daughters, who are freshmen, graduate from college and then we would sell and divide the proceeds equally. We feel very strongly that they should be able to come back to their childhood home.

I don’t have the money to buy him out. He doesn’t want to buy me out, but he is willing to let me stay in the house in exchange for a reduced child support payment so long as he continues to share in any appreciation when it is sold in four years.

We feel very strongly about this provision because one of our daughters struggles with mental health and we are not confident she will be able to remain living in a dorm – she may end up moving home and commuting.

When the lawyers presented our agreement to the judge, she rejected it and said we can’t keep the house together post-divorce and we can’t use that as a means to cut child support. The lawyers basically threw up their hands and said she is a new judge and they didn’t know she would reject it. Shouldn’t the lawyers know the judges? What can we do now?

A. Part of every lawyer’s job is to know the judges. That includes knowing nuances of which judges approve certain clauses. The judges have significant discretion in family law matters and not everyone approaches things the same way or for the same reasons. There was a recent flurry of judicial appointments in family court and even in the years leading up to this, there were many new judges appointed. The lawyers do not get to choose which judges are assigned to our cases. And sometimes, by the timing of when we file our cases, we get the same judge over and over (happens to me all the time). So, we don’t get to know how the newer judges approach some of the more unique issues – all we can do is try to explain the reason for the agreement and sometimes the judges will reconsider and sometimes not.

You have two bad options – dismiss your divorce and wait a few more years before re-filing at which point you won’t need this provision, or come up with a different solution to the issue. If the two of you are able to live apart and abide by the spirit of your agreement – try it.

Email questions to whickey@brickjones.com

Q. I saw your column a week or so ago and you said if children don’t want to be returned to another country a judge will listen to them and they don’t have to be sent back. In that situation the children were about the same ages as mine – 14 and 11. I am getting different advice from my lawyer and wonder who is right.

I am remarried and share custody, but they don’t like their mother’s boyfriend and want to spend more time with me and my wife. I am moving to New York for work and want them to come with me. They are both on board, but their mom won’t let them move and my lawyer says the judge won’t let them testify and they are too young to have a say. If kids can say they don’t want to go back to another country, the same age kids should be able to say they want to move to New York, right?

A. I can see why you think that, but the prior question dealt with an international kidnapping treaty that many countries around the world have signed onto which sets out standards for cooperation with each other and forms a cohesive process to return kids who are wrongfully removed or wrongfully retained somewhere other than their home country.

Your situation is entirely different. You have are two children on the cusp of being old enough to make important decisions for themselves. The maturity standard in the Hague Convention is different from Massachusetts case law and the entire analysis is different. You have to operate within the scope of Mass. removal law and the standard is whether it is in their best interest to move out of state with you.

It is widely accepted that children of similar ages to yours in a custody proceeding have a voice but not a choice. The court can appoint a professional to interview them or advocate on their behalf and convey their opinions. But, just because they have an opinion does NOT mean they have the ultimate say in what the custodial arrangement is – especially if that involves uprooting their entire lives and moving with you to another state away from their other parent, their friends, their extended family, doctors, coaches, teachers and other people who have been instrumental in supporting them to this point in life.

That is a big change and one that will be in the judge’s hands if you and your ex are unable to reach an agreement.

Email questions to whickey@brickjones.com

Q. My ex and I are originally from Massachusetts but moved to Spain for my job 12 years ago. We divorced two years ago in Spain. I have primary custody of our two children who are 12 and 14 which she agreed to after a court investigation determined my home to be more stable. She does spend significant time with them, especially in the summer when they travel to the U.S. to see her family.

I just learned she does not intend to come back to Spain at the end of her summer holiday with the children (they are due back in two weeks). A friend notified me she enrolled them in the local public school. I do not agree that they can stay in Massachusetts – their lives, their friends, their school and everything is all in Spain.

What is the quickest way to get the children back?

A. You have two options. First, you can get a certified copy of your Spanish divorce and custody judgment (with a certified English translation), register it in Massachusetts State Court and seek enforcement. This is generally pretty quick, and you do not have to wait for her failure to return the children before you can register the Spanish judgment.

She will have the right to object to registration but that is really hard to do. And she can then argue Massachusetts should not grant what we call comity to the Spanish judgment. Again, this will not be easy for her to do. Depending on what county she is in here, the turnaround time on this could be as quick as a month.

The other option is to file in Federal Court using the Hague Convention on Civil Aspects of International Child Abduction after she fails to return the children claiming that she is wrongfully retaining them here. The Hague cases generally move quickly as well. But she has different defense options here like claiming that there is a grave risk of harm to your children if they are returned or that they object to being returned. If she says they object, given their ages, they will be given an opportunity to express their objections and the court will make a determination as to whether they are old enough and of sufficient maturity to honor their requests.

Prioritize getting a certified copy of the judgment while you think over your path as both courts need this document at the outset.

Email questions to whickey@brickjones.com

Q. My husband and I are working on the terms of our divorce bringing a bullet point outline to an attorney to draft for us. We bought the house when I was in grad school so the house and mortgage are in his name. He says he should have the first right to buy me out.

We agreed on a buyout price which gives me a significant down payment. The problem is, he has a 30-year fixed mortgage at 3% interest and my rate is going to be 6%. If I’m going to live in the same town in a comparable house for our kids, I will need to take on a $750,000 mortgage. This means annual interest of $45,000 where his is only $22,500. This hardly seems fair, but I don’t know how to think about it or how to express it to my husband.

A. This is a relatively new problem we are starting to see and one which there is not yet any caselaw to guide us. Most people are stuck trying to get one party’s name off a mortgage so consider yourself lucky that you and your husband don’t both have to take on significantly larger interest rates. That being said, because he is not stuck in the same boat as you, it only seems fair that you get a break somewhere.

I don’t think asset division is the way to resolve this. It really amounts to a cash flow problem that should be sorted out in child support or alimony. I don’t know what your respective incomes are in terms of who is paying child support and/or alimony to the other. One way to level the playing field would be to reduce your obligation for child support/alimony by the $22,500 in interest you are paying for the privilege of living in a similar home so that the children do not feel a disparity when they are with you. But a judge may reject that deviation from the child support guidelines.

Also, that doesn’t work if you are the support recipient as he probably does not want to pay additional support. Suggest that your husband be responsible for the first $22,500 of annual extra-curricular expenses for your children and/or uninsured medical expenses. If that still doesn’t get you there or he doesn’t like the idea, suggest he put aside $22,500 per year into college savings account which would then be considered contributions from both of you at the time the children go to college.

Hire the lawyer now to act as a mediator and help the two of you brainstorm through this issue.

Email questions to whickey@brickjones.com

Q. When my ex and I divorced last year, he insisted on a 50/50 parenting plan even though he never really had much interest in our little girls. If we had 50/50, I had to pay him child support because I earn more than him but if we ran guidelines with my having more time, he had to pay me. I agreed because it was the price for my freedom, and I figured there was a small chance he could become a better father if put to the test.

Over the last year, he started a new job and asks me to step in for him every afternoon after school. I have been willing to do so because I want to spend more time with them, but I work from home. At one point, I suggested he hire a babysitter. Instead, he suggested my mom watch them at my house on his days. She has been doing that for the last 6 months and I feed them dinner every night. Often the little one falls asleep before he arrives, so he just leaves them with me overnight.

I told him I was going to take him back to court since he doesn’t use his parenting time. He said that isn’t a big enough change and I will waste money and lose. Is he right?

A. Hopefully you have been keeping a journal or calendar of all of the dates you have stepped in and taken his parenting responsibilities – especially all the nights he left the girls with you. If not, do your best to recreate a timeline from your text messages / emails or other writings which show the history. If he has had you care for them at least half of his weekday time since the start of this school year, you should file a complaint for modification looking to change the parenting plan to reflect the actual time you each have and, as part of that, eliminate your child support.

Also, you mentioned he has a new job – do you know what his income is? It may be that you do not owe him any child support now if he is earning more and if that is the case, he may be willing to negotiate a parenting plan more reflective of reality. If you don’t make it about money, he is more likely to agree so if you run guidelines and it looks like he would owe you money, if you can afford not to take it, suggest he puts the money into college savings for your girls in lieu of paying you.

Email questions to whickey@brickjones.com

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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