Maureen McBrien filed an appeal on behalf of the Mother claiming the trial judge abused his discretion in awarding equal parenting time to both parents, awarding joint legal custody over educational decisions to Father and ordering the children be moved to another school district where they had never before attended school, without independently evaluating the evidence. The Judge adopted, almost verbatim, Father’s proposed Findings which did not address Mother’s evidence, much of which was uncontested by Father. The Appeals Court vacated and remanded the matter for further proceedings the portions of the Divorce Judgment as it relates to the parenting schedule, joint legal custody over educational matters and placement of the children in another school district. (see full decision here)
Divorce
Tax deduction applies despite separation
I moved to Canada three years ago to do some post-retirement consulting. My wife and I tried the long-distance thing for a while but it didn’t work. Last October we divorced in Canada, where it was easier to divide her Canadian assets. Even though I’m the one living in Canada, she is the one who is Canadian.
She sold our home in Lincoln in December and we equally divided the proceeds. I am worried about taxes and how to declare the sale proceeds. She just told me I have to pay all of the taxes because she won’t file a joint return and she lived in the house — not me — when it was sold. I thought we would file together because we were still married in 2019. I have to file a U.S. return because of my U.S. pension. If she is right, that means we had a very unequal divorce settlement, which is not what I intended to do.
I don’t know if I can re-open my divorce in Canada to address this inequity or if I can do something in Massachusetts to fix this.
First, don’t panic — you do not need to undo your divorce agreement in order to make it fair.
What led you to believe that you could file a joint return this year? If a lawyer or accountant gave you that advice, you should give them a call and ask why. I cannot speak for Canada, but in Massachusetts, just because you got divorced in October does not mean your divorce would be final. Once the judge approves the divorce, you remain legally married here for another 90 days. In that event, you could still file a joint return. You need to find out if the province in Canada where you got divorced has the same waiting period. If so, have another discussion with your ex-wife about jointly filing taxes — she may not realize the option is on the table.
Assuming you cannot file jointly, you still will not have to pay any more in capital gain taxes from the sale of the house than she will. When an individual sells their primary residence they are entitled to a $250,000 deduction against any capital gains. That amount is doubled for a married couple. However, when a married couple separates and one party continues to live in the house for two of the last five years preceding the sale, the party who does not live in the home can still qualify to use half of the married couple deduction (i.e. $250,000 per individual). Because your ex lived in the home before the sale, you get the deduction too.
So, call your Canadian counsel to figure out if you were still married on Dec. 31, 2019, and then call your accountant and work through the filing/deduction details
Demystifying the Divorce & Family Law Process
Transferring retirement assets takes a little time
My wife and I got divorced three months ago. I was supposed to transfer half of my retirement assets to her within 30 days. I did try but was unsuccessful. I called Fidelity and asked them to give her half of my IRA. They told me to send a letter, which I did, but they still didn’t move the money. Also I asked my HR director to figure out how to move half of my 401(k) to my ex and that hasn’t been done either.
She threatened to file a contempt if I don’t move the money by the end of next week. I’m trying to move the money but no one seems to be listening to my requests. How can I make them pay attention so I don’t get into trouble?
If you had a lawyer, they would be helping you navigate these post-divorce loose ends that many people struggle with. Retirement assets take longer than 30 days to divide. But, you can set things in motion in that time frame, which I suspect is what the judge who approved your agreement thought you planned to do. And, if you do set things in motion, even if the transfer is not complete, you are not in contempt.
So, here is how you fix the issue. The Fidelity transfer is easy. You send them a letter directing them to make a tax-free roll over of half of the assets in your IRA “in kind” (meaning half of all investments without selling stocks) into a designated rollover IRA in your ex’s name. The catch here is (a) she needs to open a rollover IRA account into which the assets can be transferred and tell you the account number, and (b) she needs to send a letter to Fidelity authorizing receipt of the assets into her account. You are not in contempt if she doesn’t do her part.
The 401(k) requires professional help. In order to divide certain types of retirement assets including a 401(k), you need someone to draft a Qualified Domestic Relations Order that, when signed by the judge, will be sent to the plan administrator directing them to separate out half of the account as of the date of divorce for your ex-wife’s benefit. There are professionals who specialize in preparing these documents. Any experienced family lawyer can refer you to one. Once the QDRO is drafted, the drafter sends it off to the plan administrator for pre-approval. When it comes back, both parties will need to sign the QDRO and then it gets submitted to the judge who handled your divorce.
When you receive the signed QDRO back from the judge, you mail it to the plan administrator and usually several months later, you will receive notice that the transfer is complete.
Consult lawyer before signing pre-nup
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.
Ex needs to get message on phone calls
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.
Ex moves to Hull, and it’s a haul
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.
My Ex-Wife Hits Reply All on Confidential Emails
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.
Home Sale Adds to Divorce Difficulties
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.
Parent Coordinator as an Option to Settle Differences
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.
