Q. My husband and I are in the process of getting divorced.  We have the kids sorted out, child support and alimony and most of the asset division.  We are stuck on the house.  We both want it – we bought it 15 years ago – it is big and old and we both still love it.  He got an appraisal that I think is a bit low and he really wants to buy out my interest at that level.  I just don’t want to move.  I also think whoever keeps the house will have an advantage because that’s where the kids will want to be more often than not as they get older.

What happens if I don’t agree that he can buy me out?

A. There are a few things that can happen from negotiating a higher buyout to forcing the issue to trial.  There are some possible advantages to his buying you out. Would you feel the same way if you could goose up his number a bit?  If you really think its worth more, get your own appraisal.  If it is much higher than his, try to get him to buy you out at your number.  If the numbers are close, but yours is higher, you can either try to get him to your number or agree to average the two.  Of course, its possible your number will be lower.

If you are not convinced this is the right thing to do, you can force the issue to trial.  You can enter into an agreement on everything but the disposition of the house.  You can ask the judge to schedule a one-day trial so you can each have your appraisers testify to establish the value and you and your husband can each testify about why you should each be the one to buy out the other’s interest.  At the end of the day, I can almost guarantee everyone loses and the judge just orders the house to be sold making everyone start over in a new abode.

Consider some alternatives.  If he keeps the house, you will have a down-payment for a new home, possibly a place that you would want to live in as a single person once your children are off at college, likely with less maintenance than the existing house. Meanwhile, your share of the equity won’t be reduced by a broker’s commission or capital gain taxes if he is buying out your share in the way it would if a judge orders it sold.

Email questions to whickey@brickjones.com

Q. My ex-husband is remarried.  His new wife recently had a baby and is now staying home. He filed a complaint for modification asking for custody of our children.  I have always been their primary caretaker and only went back to work this year because my alimony ended.  Our oldest is in kindergarten and our twins are almost three and attending full time preschool.  He says because his wife can be home for the children all day and I am working, they are better suited to parent our kids.

Really, he just wants to get out of paying half of pre-school and reduce his child support. My lawyer agreed to a Guardian Ad Litem investigation.  I am stunned because she recommended changing custody so that I only have every other weekend and Wednesday nights with our kids.  My ex filed a motion to implement the recommendations.  My lawyer says I need to offer him a 50/50 custody arrangement in hopes he will settle but I am terrified this could backfire on me and I might lose our kids.  I can’t even imagine how I got here.  What can I do?

A.  Your ex cannot just get the judge to change custody in a motion session by asking for implementation of the GAL recommendations.  Implementing GAL recommendations should only happen after a trial or, if there is some emergent situation, after an evidentiary hearing during which the GAL is subject to cross examination.

Your lawyer should know that and should be objecting to the process.  If your lawyer is saying something different, you should begin shopping for more than Christmas gifts – you need a lawyer experienced in reading and taking apart GAL reports.  A good place to start is with a lawyer who has both litigation experience and who actually does GAL investigations.

Your new lawyer will probably need to take the GAL’s deposition before a trial.  A deposition gives your lawyer the opportunity to ask the GAL questions under oath and determine any underlying biases she may have and begin to poke some holes in the investigation as well as the conclusions reached.  If the deposition goes well enough, your lawyer may be able to get the other side to back down.

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Q. My fiancé and I are planning to be married on New Year’s Eve.  He just announced that we need a pre-nuptial agreement.  I’m shocked.  We have been living together for the last five years and are only getting married now because we decided to have children.

We both work and live comfortably contributing relatively equally so I am struggling not to feel offended by his ask.  At the same time, I’m not sure how big a deal it is.  How common are pre-nuptial agreements and why do people generally have them?  Do the courts typically enforce them if things go wrong or are we just wasting money up front that we will also have to spend later if things go badly?

A. Pre-nuptial agreements are most common in situations where people are entering a second marriage and have children from your first marriage who they want to leave their assets to.  They are also common in first time marriages where one party stands to receive a sizable inheritance and/or there is a family business for which one party works.  In those specific situations people generally identify their respective separate assets which they contract to remain separate in the event of a divorce.  You can also use a pre-nuptial agreement to do some basic estate planning.

I don’t know whether you and your fiancé have ever discussed inheritances, but it may be that he is asking in an effort to protect an inheritance.  It may also be that he is asking because his parents are divorced, and he saw the difficult process first-hand.  Bottom line, before you get offended, have an honest conversation about where this is coming from.

Pre-nuptial agreements are enforced by the court so long as it is determined they are “fair and reasonable” at the time of execution and “conscionable” at the time of enforcement.  Of course, the court doesn’t even look at these tests if there is no dispute over the terms – which is the ultimate goal.

Assuming you agree to his request, you should consider tacking on the years you lived together in defining the length of your marriage for alimony calculation or sunset clause purposes.

Email questions to whickey@brickjones.com

Q. My wife and I agreed to mediate instead of hiring lawyers. But, we have been trying to choose a mediator for the last four months and I am beginning to suspect that there is something else at play here.  My wife insists on controlling the process.  I am a law professor, so she is highly suspicious of anyone I know or talk to.  So far, I have provided her with the names of seven possible mediators.

My wife has either found something wrong with each person or talked to them for so long they feel conflicted out of acting as mediator.  I don’t want to step on her toes but at this rate, we are never going to actually start the mediation process and she is going to conflict out every mediator in Massachusetts.  What do you suggest?

A. I think you need to ask yourself whether mediation truly is the right fit.  If she is so suspicious of you that she will not let you participate in the process of an initial call to a mediator, is she someone who will ever trust what you are saying during the mediation process?  It sounds to me like she is using the hunt for a mediator as an excuse to delay the inevitable.

If you are truly committed to mediation, I recommend you come up with a list of three more names.  You email each of those names and ask for an appointment for an introductory call with your wife on the line.  That will allow each of you to get a sense of whether that mediator is the right fit for you.  If after you jointly talk with three, you cannot agree on someone, it is time to cut bait and pivot to your other options.

You do not have to immediately jump into contested litigation, although if you still get the sense she is just looking to delay, I recommend you file a complaint for divorce to get the process started.  This will force her to also be proactive.  Either way, hire a lawyer who has a reputation for settling most of his/her cases but knows how to try a case if necessary, as opposed to someone who has reputation for pushing cases to trial.  From there, you can make a reasonable settlement proposal through counsel and hopefully reach a negotiated settlement without spending too much money.

Email questions to whickey@brickjones.com

Q. My wife and I have lived a nomadic life for the last several years.  I travel significantly for work and she joined me most of the time once our kids finished high school.  We were in a different country each month for the two years leading up to COVID.  In the initial lock-down we got stuck in California at my sister-in-law’s house where we were visiting.  Once restrictions were lifted a bit that summer, we came back to Mass. to clean out our house after long term tenants vacated.  We stayed here for a month and that month was not good.  We did resume traveling for my job once things opened up but our marriage has never been the same.  We did return to California for the summer and my wife has stayed there with her sister.

We have tenants in our house again and we do not know where we can file for divorce.  Most of our bank accounts are U.S.-based although we do have some in the UK and Singapore.  What do you suggest?

A. In order to file in Massachusetts, you need to be a resident for a year.  Where your house is here, I am guessing you still have many things here like voter registration, physicians, drivers licenses and probably file taxes here.  Assuming I am right, a court would likely find that you are still domiciled in Massachusetts meaning you need not return, re-establish residence and wait a full year after to file for divorce.

Another thing you have going for you is the month you spent here back in 2020.  If you can honestly state that your marriage became irretrievably broken during that stay in Massachusetts, you can file for divorce here without dealing with the waiting period by claiming that the breakdown happened here.

Location of your assets is not a problem.  Massachusetts can divide assets anywhere in the world.  However, if you need to enforce a judgment or order for division, you will need to go to England or Singapore and register your judgment there.

If you want to proceed here, I suggest you rent a place in Massachusetts while your home remains occupied so you have an address from which to file.  Then, file and serve ASAP to avoid a jurisdiction fight.

Email questions to whickey@brickjones.com

Q. My ex was injured at work a couple of years ago.  At that time, he had to stop working and got a reduction in his child support to next to nothing. He applied for SSDI but it took two years to get anything. I recently learned that he is now receiving $30,000 per year. Someone told me he probably also gets money for our son but, naturally, he has not been forthcoming with this information and is still fighting with me about paying any part of Jake’s braces and extracurricular activities, which are his only support obligations now. He hasn’t even offered to take Jake more now that he isn’t working to help out and I am still paying for after-school child care.

Can I ask the court to make him pay some child support now that he has some income even if it isn’t much? I don’t know how this works but I assume I shouldn’t just believe him when he says he does not have to pay because he is disabled.

A. You are right not to believe him as he is not giving you the full picture. You should file a complaint for modification right away asking that the court enter a new child support order now that he is receiving disability income. There is a case on point that says if he receives SSDI, he has an obligation to pay child support on that money. The sooner you act on this point, the sooner you will get support reinstated. Also, be sure to ask that the order be retroactive to the date he was approved for benefits.

Once you serve the summons and complaint, you should send him a request for documents. In your request ask for his application and all communications with Social Security regarding his application and receipt of benefits. Ask in particular for all documents reflecting any retroactive award he may have received. Often times, because it takes so long to get the application processed and approved, the benefits are awarded retroactively to the date of the application. Finally, ask for the breakdown between how much of his benefits are awarded directly to him and how much are awarded on account of Jake. SSDI recipients with minor dependent children typically receive a child benefit as part of the monthly payment

Once you know what he received for benefits and retroactive award, you can ask the judge to make further orders. For example, if your ex received a retroactive award for Jake at a time when his support had been reduced as described, you should ask for the retroactive check for your son. At the very least, the judge should order that the ongoing monthly checks attributed to Jake be paid to you as child support.  And, if the application of the child support guidelines on the amount of the award attributed to your ex results in more support than Jake’s benefit, your ex should be ordered to pay the difference.

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Email questions to whickey@brickjones.com.