News from the Firm
Take Note: Our Legal Service Operations and COVID-19
As news of the coronavirus (COVID-19) global health crisis continues to evolve, we at Brick, Jones, McBrien and Hickey, LLP want to share with you our plans for keeping our clients, employees and community secure. We understand that during this uncertain time, our clients’ legal needs will not go away.
At this time, our physical office in Newton will be closed until further notice. However, our office remains open for business as our attorneys and staff are fully operational remotely. We appreciate your patience and understanding as we acclimate to a new way of doing business.
In an effort to continue to address our clients’ needs, and to be cognizant of the recommendations of health experts, we will, whenever possible, encourage our clients to meet and consult with us virtually. Our firm infrastructure and procedures allow our lawyers and staff to work remotely while still providing legal guidance and assistance of the highest quality.
For now, the Massachusetts Probate and Family Court remains open but has restricted in-person appearances of all kinds. Only emergencies are being heard through telephonic appearances. Matters of a non-emergent matter are being rescheduled to a later date. We will be in touch with individual clients to discuss how these restrictions may impact your matter.
We remain committed to servicing our clients while following recommendations from the World Health Organization, U.S. Centers for Disease Control and Prevention and local authorities. We value the safety and wellbeing of our clients and employees above all else.
Please do not hesitate to contact our office via phone or email should you have any questions.
Social Security, pension play role in agreement
I thought my husband and I had reached an agreement but a friend recently told me I might be getting a very different income than what we agreed because Social Security is going to cut off my benefits when my husband retires. I am 10 years older and already retired. I have my own IRA I take distributions from, but it isn’t huge. However, between my IRA and Social Security I can stretch to make ends meet. I live in an in-law apartment attached to our daughter’s house and take care of her kids while she is at work in exchange for my housing. So, I only have to pay for things like my car, health insurance, medical bills, food and utilities.
My husband is a teacher and is planning to retire in two years. At that point, I will start to receive half of his teacher’s pension. Is it true that Social Security will cut off my benefits when I start to receive my husband’s pension? I get $1,500 per month from Social Security and when my husband retires, my half of his pension is projected to be $2,000 per month. I can budget very carefully until then and dip into savings but, I’m not sure I can do this if my Social Security will go away when he retires. I will use up my savings very fast in that case.
The short answer is “Social Security is complicated” and you really need to consult an expert in Social Security law before signing your agreement. From what you have said, I assume the Social Security you are collecting is your own based on your own work over the years. If that is true, my understanding is there should be no reduction in your benefits — the reduction would be in your husband’s benefits if he is collecting spousal benefits on account of your Social Security.
However, if your Social Security benefits are widower benefits or spousal benefits on account of a prior marriage, that is a different story. In that event, there will be a somewhat complicated calculation that will reduce your Social Security retirement benefits when you start to receive money from your husband’s pension because of the Government Pension Offset rules.
If you do fall into the category where you will receive a reduction, it is not dollar for dollar but, rather two thirds on the dollar. The problem for you, however, is that the pension benefit you will receive is higher than the Social Security. If this does apply to you, the pension benefit would almost entirely wipe out your Social Security benefit.
But, again, this is only if your Social Security benefits are widower or spousal benefits. So, even though you have a very limited income, it would be well worth your money to obtain an opinion from a Social Security lawyer before potentially signing away a large chunk of your income upon your husband’s retirement.
Ex goes after family’s phone records
My ex-husband subpoenaed Verizon looking for records for most of my family. I have no idea why he would have the right to get cell phone records for my parents, my sister, our sons or my fiancé. I don’t even know why he is entitled to my cell phone records. I filed a complaint for modification back in January because I got laid off and I know he is making more money than he earned four years ago when we divorced.
Can I just ask Verizon not to produce anything to him? If I make that request will they honor it?
He probably is not entitled to this information but, rather, is using discovery abuse as a method of harassment. Discovery in a child support modification is far more narrow than what is permitted in a divorce because you have far fewer relevant facts to establish. I can come up with plausible reasons he might have issued the subpoena the way he did but really only if you work for a family business that employs the other people you listed. I do not see how your family’s Verizon records would be evidence or would lead to discoverable evidence otherwise.
Your family members should each notify Verizon that they are objecting to the subpoena and request that Verizon not produce any records until otherwise directed by the court. Then, each person needs to file a Motion to Quash the subpoena stating that they have no involvement in your child support modification case and their privacy rights are violated by his request. To the extent they hire counsel to file the motion, they should also ask for legal fees from your ex.
Your records might be different. If he suspects you continue to work and that you are trying to hide your income from him just to drive up his support obligation, he can argue the need for your records to examine them for certain patterns in your calling and/or for purposes of determining where your phone is located. It is possible to determine from certain records whether your phone is in the vicinity of certain cellular towers for hours of time each day, which could tend to show you continue to work, perhaps under the table at this point. Unless you truly have something to hide, I suggest you permit Verizon to respond to the part of the subpoena seeking your records.
As for your sons, I assume where you are looking for child support, they are still dependent. I also assume they are on your phone plan. As their father, unless there are some unusual circumstances of which I am unaware, he should be allowed access to their records. So, again, I would not object to his obtaining those records.
If you remain silent on the things he probably is entitled to, it makes his overreaching on the rest that much more offensive to a judge.
Collaborative process not for everyone
My wife wants a divorce. I don’t want this, but I know I can’t stop it. She is insisting we hire a “collaborative team.” I don’t know what that means but she says her girlfriend is doing this approach and they have worked it all out and somehow she believes our families will blend together into one big unit.
I don’t want to become family with her girlfriend’s ex-husband, although maybe we have some commonality. I don’t want to be family with my wife’s girlfriend. And I don’t want our kids to think any of this is normal.
I promised to keep an open mind, so can you tell me what a collaborative team is and help me understand why I should use one?
You have come to the wrong person if you want convincing to use this process. There is a school of thought out there that if you have no easy out, parties who enter the collaborative process will see it through to completion and reach an agreement. Those who promote it swear by it and also believe it saves people a ton of money while also building the basis for a good relationship going forward.
A collaborative lawyer agrees to represent you so long as you are engaged in the collaborative process but, if you or your wife backs out of the process, that lawyer will not represent you in litigation regardless of how much you may want them to remain in the case. Instead, you would have to hire a new lawyer, bring that person up to speed on the case (so essentially paying them to understand the work that was already done) and that new lawyer can then represent you in litigation or non-collaborative mediation.
A collaborative team typically involves a lawyer for each party, a mediator, a therapist of some sort (often one for each party and one for the children), sometimes an accountant is involved to help with the financial side and/or a financial planner. Those who practice collaborative law swear it is more cost effective but suddenly instead of paying two lawyers and possibly a Guardian Ad Litem or a mediator, you are now paying as many as eight professionals to help you navigate the process — and if it fails, you have to hire all new professionals to get across the finish line.
I am not telling you don’t try it. Maybe it will help you build the kind of post-divorce relationship that will benefit your children. But if your wife is looking to mirror her girlfriend’s divorce, you don’t have to drink the KoolAid she is offering.
Ex can expect blackmail to backfire
Q. My husband and I are both representing ourselves at our upcoming divorce trial. He provided his list of exhibits today which include recorded conversations of me that I did not know he made. In his email he said he plans to testify about all kinds of things I said to him about my family years ago so that he can get a transcript of the testimony and use it to encourage them to write me out of family wills. He thinks he can blackmail me into settlement.
The reading I have done suggests he cannot testify about conversations we had. How do I prevent him from doing this? I come from a highly religious family where an oath means something. I have a mentally ill wealthy mother who just looks for reasons to write us all out of her estate plan so I actually am worried about this threat.
You need to beat your husband at his own game. Offer the email he sent you attempting to blackmail you into settlement as your Exhibit 1 at trial. If he objects to your adding an additional exhibit, provide it to him in advance of trial and tell the judge the document did not exist until the deadline on which to exchange exhibits so you ought not to be penalized by his late blackmail attempt.
You should also make a motion in limine, which means to limit evidence. In your motion, ask the judge to prohibit him from offering any recordings of conversations with you because you never gave him permission to record you. You need to read your trial order carefully because motions in limine usually need to be scheduled for hearing at least 10 days before trial — don’t miss that deadline.
As for conversations, who else was present when you and your husband had these discussions? If you were alone, it was a private marital conversation which, according to Massachusetts law (Chapter 233, section 20) means you cannot testify about the contents. In Massachusetts we take this quite seriously — it is not a mere privilege which can be waived but rather a disqualification. However, if you do not timely object to the testimony, the judge will allow him to talk.
You should include in your motion in limine a request that he not be allowed to testify about husband and wife disqualified conversations. While it is a given, it sends a signal to him that he cannot do it.
For good measure, it wouldn’t hurt to call your mother and tell her just how crazy your husband has become and that he is making up all kinds of crazy stories and trying to blackmail you. That way even if he gets to her, she is warned and his plan will not have the desired effect.
Seeking child support may not be worth it
At the time of my divorce, I lived in Middlesex county and so did my husband. Two years after the divorce I was in a terrible accident and became completely disabled. My ex agreed our two daughters and I could move to upstate New Hampshire to live with my mom. At the time of the divorce, I was the primary parent and the sole wage earner, my husband was struggling with alcoholism. I was an associate at a big firm earning a significant income. Both my husband and I represented ourselves. I always felt the judge hated me and believed I was taking advantage of my husband with the “deal” I got. But I was earning all the money and had all the responsibility so I didn’t see it that way.
Anyway, my ex has been sober for the last 18 months and has a steady job. He comes up to visit our girls about six times each year for long weekends. He now lives in Plymouth county. I have the settlement from my accident and SSDI but am young and the settlement won’t last forever, especially if I have to pay for everything.
I am considering seeking child support. But I’m afraid of the judge, who clearly hated me last time. Now that my ex lives in Plymouth county, can I file a modification there to get child support?
Before you panic and try to change counties (there is a process but it isn’t guaranteed), you should look up your docket number on the Masscourts website. Middlesex County was recently divided into north and south districts. Half of the judges are now in Lowell and the other half remain in Cambridge. It may be, depending on where you lived at the time of your divorce, that you no longer have the same judge. In that case, you should file your modification complaint as soon as possible and serve the summons on your ex as soon as you receive it. You should ask that the child support be modified retroactively to the date you serve the summons.
If you find that you have the same judge and you truly are unwilling to go back before him/her, you can file for a change in venue but you would have to allege there is a hardship of some sort that necessitates the change. Further, right now hearings are still being held virtually so I don’t know how you will meet this standard.
Last, while you didn’t ask, I assume your children receive SSDI benefits along with yours. You will need to disclose those benefits in connection with the modification you are seeking. If you know what your ex is earning, run some child support guidelines calculators to see if it is even worth opening this can of worms.
Ex intends to drain money during divorce
My wife doesn’t want a divorce, so she is making everything about the process extra hard and extra expensive. When I first asked for the divorce, she said she was going to bankrupt me — I’m starting to believe it. When my lawyer said the rules require me to turn over documents or fill in complex forms I did it. I may not like the rules, but I follow them.
My wife couldn’t agree that I should have any overnight parenting time with our kids because “she always puts them to bed.” So, now we have an expensive Guardian Ad Litem and I had to pay half — another total waste of money.
My lawyer now tells me that I need something called a discovery master and that I will have to pay for that service too. Can you explain what a discovery master is, why I need one and how I can stop my wife from her stated goal of bankrupting me?
Divorce is an expensive process when at least one party wants to have a fight. The most complicated of cases with significant assets and children can be resolved for little money if people share the motivation to reach an agreement. Clearly her intention is to punish you for some perceived wrong.
A discovery master is a lawyer or retired judge who all discovery disputes are brought before instead of trying to get in front of the judge hearing your case. They can be an invaluable tool. Yes, they charge fees, but the cost is less than going to court. Given the state of the court system in light of the pandemic where many judges are still not hearing anything that is not an emergency, a discovery dispute can stop any forward progress in the overall case. You cannot get to the step of a pretrial conference or trial dates if you do not first engage in discovery. You need someone who can be easily accessed to make her engage.
Make sure when your lawyer prepares the motion for the master appointment, the proposed order includes the right for the master to shift his/her fees for bad conduct and the right to assess sanctions for discovery abuse. Your wife will likely “appeal” the rulings of the discovery master to the judge assigned to your case, so the proposed order should also make clear the judge can order the losing party who appeals such a ruling to pay the full cost of both sides for the appeal. With any luck, your wife will see the downside risk associated with her conduct and begin to follow the rules.
If not, at the end of the day, the judge will take into consideration your respective conduct during this process and can make you whole in the asset division, including reassessing GAL and master fees. At that point, your wife will realize how badly her plan backfired.
Helping mom navigate tricky divorce
My mother is getting divorced. She has been separated from my 80-year-old step-father and living with me for the last year. They were scheduled for a trial in early May that was continued. There is no new trial date. The problem is, my step-father’s children are in control. He is nearly 80 and has Alzheimer’s among other serious health issues. They are acting as his guardians, controlling the money and forcing this to trial.
My mom, who is 14 years younger, signed a pre-nuptial agreement before their marriage 10 years ago and the terms are quite different if he divorces her versus if he dies. His kids didn’t know that when they became his guardians and filed for divorce. I am worried they are now hoping they can hold out until he dies so my mom gets far less. They are contesting the prenuptial agreement on his behalf arguing that he was not competent to sign back then due to health issues. That is why a trial is necessary.
My mom is too sad to be proactive. I don’t want to see her get the short end of the stick because of the actions taken by his kids who are not at all like him. Can I do anything to keep the divorce on track?
You can. If your mother has a lawyer, ask her for permission to speak with she and her lawyer. If she does not have a lawyer, help her get one — she should not try to represent herself at trial.
You should remind her lawyer that there is a law, Massachusetts General Laws chapter 231, § 58F that states “In any civil action in any Court of the Commonwealth in which one or more of the parties at the time of commencement of the proceeding is 65 years of age or older during the pendency of the proceeding attains the age of 65, the Court shall, upon motion of such person, advance the proceeding for speedy trial so that it may be heard and determined with as little delay as possible.” Ask the lawyer to file the motion for a speedy trial because the plaintiff is 79. They are entitled to quick action here regardless of the pandemic.
The courts re-opened for trials on July 13. If, because of health concerns, either your mom or her husband cannot or do not want to appear in person, many judges are also holding trials by zoom conference. She can certainly push this to a conclusion.
As for the children’s claims of competence, make sure your mother asks them “expert interrogatories” before trial so she knows who will testify about his lack of competence and what that person will say. This will give her a chance to hire and present evidence from a competing expert. Of course, she lived with him day to day for the last 10 years so she can also testify about his capacity from a factual standpoint.
Elderly dad plans to marry caretaker
Q. When my mother died four years ago, my father received her $1 million life insurance which my parents had always said was for the college education of their four grandchildren. My dad is comfortable living in a mortgage free home with a pension and social security. Over the last year he has been suffering from heart problems and dementia. My sister and I hired a home health aid for him in January because neither of us lives close enough to check on and help him daily.
She moved in with him during the pandemic and even after the reopening has continued to live there. Now my dad says they are planning to get married in August. I don’t know much about her, but she is forty years younger than him and he has known her for less than six months. We are really concerned that she is trying to take advantage of him. He doesn’t see it.
Is there anything we can do to stop this? Can we protect the college education funds for the grandkids?
- There are a few options, none of which will make your father happy if he thinks he has found true love. First, if this woman truly has no ill intentions and really just loves your father, she should be willing to sign a pre-nuptial agreement which, at the very least, protects the money that was earmarked for the grandchildren’s college educations. It may be fair for the woman to vest in some portion of his home or pension after a certain number of years of marriage. Afterall, she will be the one caring for him. At the very least, she should receive the equivalent of what her salary would have been had she continued to be employed as his caretaker rather than his wife.
You can suggest but you cannot require your father and his nurse execute a pre-nuptial agreement. They are, after all, adults. You and your sister should sit with them and have a frank conversation with them regardless of how uncomfortable it will be.
Another thing to consider – how bad is your father’s dementia? Is he competent to make the decision to marry? You should call his physician and express your concerns that he is being taken advantage of. When was the last time he was fully evaluated? Probably not recently given the number of cancelled medical appointments during the pandemic. Take him for a full medical evaluation and see what his doctor says. If the doctor believes he is not competent to consent to marriage, ask what else dad is not competent to do. Then ask the doctor to sign a medical certificate so you can seek a guardian or conservator for your dad. By taking that legal step, you or your sister could be put in charge of managing his finances and medical decisions.
If he suddenly lacks control over his finances, the truth behind this new-found love will be quickly revealed.
Ex wants to stop paying alimony
I just received a complaint for modification from my ex looking to end alimony. He says because of the new alimony laws, he reached the time limit on his obligation. I read that if you have a 20-year marriage, he still has to pay. We were married for almost 20 years. He gave me the divorce papers the day before our anniversary and announced he was marrying his secretary.
I depend on that alimony and have structured my life so that I can meet my expenses, but I don’t have savings. I just have a modest house and will be able to collect on my teacher’s pension in a few years but I haven’t worked full time since our kids were born — I have a job share with another teacher. Our daughter had special needs and I had to be available. When she passed away two years ago, I didn’t have a real reason to change the job share I’ve had for over a decade.
Can he just end alimony?
These are very interesting facts that probably only impact a handful of people. Before the alimony reform act, we looked to the length of marriage to determine property division. The marital estate is divided as of the date of divorce, so the assumption was your length of marriage was based on the date of marriage until date of divorce. That is still the case for property division. However, under the alimony reform act, for alimony duration purposes, the length of marriage is calculated from the date of marriage until the date the summons is served in connection with the divorce.
People whose alimony orders predate the reform have encountered a number of unexpected situations the legislature did not anticipate. In fairness to you, the law at the time of your divorce should apply to the calculation of the length of marriage which would put you over the 20-year mark and would mean he only gets to modify his alimony upon his actual retirement, at which point he would have to show why he should be allowed to stop his alimony. If you Google and read Pierce versus Pierce that will give you some information on what he would have to show to end alimony.
He wants to apply this new definition to your 20-year-less-one-day marriage to save a few bucks. While I think you have a strong argument to apply the old definition, nothing is foolproof and judges have discretion. You could spend years and a ton of money litigating this point. Given you are each approaching retirement, I suggest you try to negotiate an alimony buyout. If you litigate and win now, he will only be back in a few years for round two. Figure out the number you can each live with now and move on.
