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.  

As of June 7, 2021, all visitors whether vaccinated or not will still be required to wear a mask. However, if agreed to between visitors and attorney or staff member, masks can be removed while in a conference room with the door closed. We will update these policies as more information is provided by the CDC and the State.

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.

Divorce 411: After 10 years, husband returns and wants money

Q: My husband walked out on me and our children ten years ago. He never paid a dime in support and the last 10 years were a real struggle. I got a much better job, worked hard, paid off the rest of our mortgage, and did my best to put our two kids through college. I never filed for divorce because frankly I didn’t have the money and I didn’t know where he was.

Now that the real estate market is hot and the kids are out of high school, I decided I want to sell the house. The problem is his name is still on the deed. I reached out to his family to see if someone could get him to cooperate. Of course, now he has surfaced and is demanding that I give him half the equity. This just seems so wrong. Do I have any recourse? Can I get retroactive child support, alimony and college contributions?

A: It will take court intervention, but you do have an argument to be made. The court will not order retroactive support or college contributions, but you were clearly the only one contributing to the marital estate during those 10 years of separation. So, you can argue that the marital estate stopped accruing when he walked out the door 10 years ago and failed to contribute anything from that point forward. You need to find someone who can do a retroactive appraisal of your house and testify to the court as to the value 10 years ago. You also need to get the records of your outstanding mortgage balance 10 years ago to determine the equity.

Don’t stop there, you should also try to get bank account records, retirement statements and credit card bills so you can show the little he should be entitled to. Then try to tally up how much you spent to support your children and keep the household going during that time frame. The more you pile on the more sympathetic your case is.

You will need to file for divorce and ask the court to enter temporary orders allowing you to sell the house. the net sale proceeds will need to be held in escrow for now. Unfortunately, this will tie up your share of the equity as well which will make buying something new difficult. But, on these facts, you can argue that you should get an advance for a down-payment on some other home if you cannot find a suitable rental situation for the time being It just might be hard to argue that he shouldn’t also get an advance.

Of course, you can also weigh the cost of legal fees and value of your time and maybe he will settle for a much smaller share of the home equity to walk away so neither of you incurs legal fees. While I know you don’t want to pay anything — your time and energy have a value — you just have to decide what it is.

Email questions to whickey@brickjones.com.

Did I get a bad deal in the divorce?

Q: I think I got bad advice back when I got divorced three years ago. I agreed to sell my house when my youngest left for college and give my ex half of the sale proceeds. She left for college in September 2021 and I haven’t sold the house yet. His name was never on the house and he really never contributed to the finances. He was out of work regularly throughout the marriage and for years didn’t make an effort to get a good job. Then he tried to fight for custody saying he was the primary parent just because he kept losing his jobs. At least now he has a decent job so he has been able to help our girls pay for college.

I always felt like my lawyer was afraid of his and I think that’s why she encouraged me to settle for such a bad deal. I don’t want to sell my house. Can I undo the agreement and keep my house?

A: Without knowing all of the facts of your case at the time, I can’t agree you got bad advice. It is relatively common for one party in a divorce to decide not to uproot the children and defer receiving his/her share of the equity in the home until the youngest graduates from high school. It sounds like this is exactly the deal you struck and on the face of it — it’s not bad advice. Frankly, it does not matter whose name is on the deed to the house. If it was a house one of you owned during the marriage and you lived there as a family, it is a marital asset. It also does not matter who pays the mortgage. Not all contributions can be measured with a dollar value. If that were the case, stay-at-home parents would never receive the benefit of their contributions on divorce. Indeed, this is exactly why the law is what it is.

I’m sure it is easy to think of him as a bum who couldn’t keep a job when you look back on it, but I am equally sure there was some value in his being around when the children got home from school, including not having to pay for childcare. That is why he tried to argue he was the primary parent. The good news for you is he did not push that argument all the way to trial, which would have cost far more.

Can you undo it now? No — property division is not modifiable in the future if someone changes their mind. However, if you qualify for a mortgage and can buy him out of the equity, it never hurts to ask him to agree. You need to look at this differently — he has allowed you to live, rent-free for the last three years in his half of the house. Now he is ready to sell his half — either you can buy it or someone else will.

Travel points count as marital assets

Q: My husband worked as a consultant throughout our marriage, traveling extensively over the years. He was always allowed to keep all of his miles and points. As a result, he has the highest level status with many hotel chains and airlines and has over a million AmEx points. I want him to buy me out. I believe these are marital assets and we always planned to use all of these benefits when we retired to travel the world together. Now he will be taking the trips we always discussed with another woman.

My lawyer says that I cannot force these companies to divided points and miles in half because it is not their policy to do so. This seems so unfair. How do I find someone to testify about the actual value of these as assets? I want my husband to buy me out if they cannot be divided. This can’t be the first time someone has tried to argue these benefits are assets, right?

A: You are correct — these are valuable assets. But, finding a qualified expert to place a dollar value on the rewards is not going to be easy. I have never used such an expert and don’t know of one. But there are other ways to address equalization.

American Express will allow him to open a new account (on which he can add you as a cardholder) and have the points transferred to that card. You can structure an agreement in such a way that you each have to pay off your share of the use of the card on a monthly basis and you each get to use half of the points. You can even make it so that only certain types of things can be charged on the account such as travel then you can use the points for upgrades for your trips.

He can also agree to use half of the Marriott points and various miles to book rooms and/or flights for you (and your companions) until you have utilized half of the points. He will need to share copies of his statements for all of his rewards programs on a regular basis so you can ensure that you are receiving the benefits to which you are entitled. This request is sure to drive him crazy.

So, I also suggest you research where you can go, stay, etc. at today’s rates to use up half of the accrued rewards. Then figure out how much it will cost you to take those trips without any rewards staying in the same level accommodations and flying with upgraded seats. That way if he does not want to account to you for all of the rewards on an ongoing basis he can now agree to pay you the amount necessary for you to take all these trips. And, if settlement is not achieved, you have now done the research and can testify about the places you would go with your half and the actual cost.

Wife wants to move on, divide assets

Q: My husband and I have been living off our savings since early on in the pandemic. We were fortunate to have enough money to do so. We have each been commuting between other states with our siblings helping to care for our elderly parents and taking turns being home for our son who is now about to go off to college.

My parents live in South Carolina and I have gotten used to the nicer weather. My husband’s parents are in Pennsylvania. We drifted apart during this arrangement and I think will both be happier if we go our separate ways. I secured a job teaching in South Carolina starting in August and assumed he would go to Pennsylvania. However, he wants to remain here unemployed. He says we cannot sell the house until Max graduates college because he needs a home, and says I will have to pay him child support so he can keep the house.

Max is going to Wake Forest. I am not sure how often, if at all, he will return to Massachusetts — he might just come to me in South Carolina during vacations. My husband’s proposal really doesn’t seem fair. I thought we could wrap this up quickly before I move but now that seems unlikely. Can I still move in time to start my job? Can I make him go back to work and divide assets now?

A: Where parenting time for Max is not an issue, you can still move without complications. However, until things are finalized, understand you will be on the hook for half of the expenses related to your house. If you have not already filed your complaint for divorce, I highly recommend filing now. Ask for an equal division of the assets, equal division of college expenses, no child support and no alimony. You will need to rent something in South Carolina for now because if you buy something, half the equity will become a marital asset — its easier and cleaner not to add that complication just yet.

As a first step, you should make a motion to order your husband to engage in a job search or, alternatively, to have income attributed to him at his most recent salary. This will take away his ability to argue that you should pay him alimony. Once he either has a job or has accepted an attribution of income at his prior earnings, you can run child support guidelines but a judge does have discretion in ordering support once a child is in college. I suggest you attempt to agree there will be no support paid to each other, that you will each contribute to college expenses and you will each give Max a certain monthly allowance directly.

This is not a quick process that will end before you leave for South Carolina and you will have to return periodically for court hearings or depositions but don’t let that small inconvenience stop you from moving on.

Email questions to whickey@brickjones.com.

Ex buys time by hiring, firing lawyers

Q: My ex has played delay games for years. She hires and fires lawyers every few months (including during the divorce) and gets continuances. We were divorced in Illinois and I moved to Massachusetts. During the pandemic, our kids were here with me for spring break and my ex and I agreed they could stay because that made things easier for her — she didn’t want to oversee home schooling our kids and my current wife doesn’t work.

I filed to modify child support here because my ex didn’t agree that I could stop paying. She continues to say they need their home in Chicago. Meanwhile they have lived with me full time since March 2020, I pay all their expenses including private school for one and now college for the other.

My ex keeps showing up for hearings saying she needs a lawyer. Then she hires someone who requests more time to get to know the case. Then that person quits or she fires them. It doesn’t help that we have had three different judges, all of whom feel sorry for her and just give her a continuance. We are supposed to have a pre-trial conference in the end of July. Today I learned her lawyer is quitting and she is again asking to continue things so she can find a lawyer. Meanwhile I keep being told this is not an emergency so I can’t get a temporary order to stop paying support. What can I do?

A: This time the lawyer will have a harder time getting permission to withdraw because the pre-trial conference is so close. You can oppose the motion to withdraw if the withdrawal will result in a further continuance. The judge can deny the motion to withdraw and order the lawyer to stay in through the pre-trial conference. In that way you will at least get to check the pre-trial conference box and ask for trial dates.

Alternatively, you can agree to the lawyer withdrawing on the condition that child support is suspended pending trial on the merits. Try to convince the judge that this arrangement is a motivator for everyone. If support is suspended now, your ex will likely agree to keep dates on the calendar if she thinks she will be entitled to reinstatement of support even if at a reduced rate.

If you didn’t ask for retroactive elimination of child support in your complaint, file a motion to amend the compliant to seek a retroactive elimination of support. If she is not in a position to pay back what she has received since you filed, that is another reason for the judge to end it now. You can also offer to “escrow” your support payments so if she wins the money is there but if she loses, you don’t have to chase her to get your money back. While you are at it, ask the judge to order her to use the support she receives to pay a share of the educational expenses.

Email questions to whickey@brickjones.com.

3 states, 1 custody fight

Q: I got divorced in Massachusetts but later moved to California. My ex relocated a year later to Nevada with our daughter. I agreed because that brought her closer to me. Now our daughter is 15 and wants to live with me in California. She came out during the winter break after a fight with my ex and we agreed she could stay for a semester. Well, my ex wants her back in Nevada and I want her to stay in California.

In April, my ex filed a compliant for modification in Massachusetts to recalculate child support and change our parenting plan. She says because she filed before our daughter was in California for six months, Massachusetts is where we have to have this fight. I’m so confused because none of us has lived in Massachusetts for the last two years.

Do I have to come back to Massachusetts to do this? Or can I move this fight to California?

A: Based on the information you provided I cannot say for sure whether California has jurisdiction to make this determination or if the better place is Nevada. For sure, Massachusetts is the wrong place. We are the only state in the country that has not adopted the Uniform Child Custody Jurisdiction Enforcement Act. Had we adopted it, filing in Massachusetts could have been OK but then you could still file in California and ask for the two judges to have a conference to determine which forum is the most convenient based on the location of relevant witnesses.

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Massachusetts loses jurisdiction over child custody when the child has lived elsewhere for more than six months. It appears your ex is confused on this point. The real question is which jurisdiction is the most convenient forum as between California and Nevada. So, I suggest you file to register the Massachusetts orders in California and then a modification action there. Simultaneously you need to hire a lawyer in Massachusetts to file a limited appearance solely to contest jurisdiction.

The challenge then becomes Massachusetts could take jurisdiction over the child support piece under the Uniform Interstate Family Support Act because the order originated here. However, where no one lives here now, that issue should also be moved to a more convenient forum. So, in that same motion to contest jurisdiction over the custody piece, ask the court to have a call with the California judge on the issue of support and to decline jurisdiction in favor of California.

Your ex may catch wind of her mistake and file in Nevada for the same relief, so I suggest you act swiftly in California. Also, be sure that your daughter’s teachers, coaches, neighbors, dentist/doctors and the like are available to make statements over the summer as to why they have the most relevant information so you can show California is the most convenient place to decide the issues. Finally, forum shopping is frowned upon so play that card if she files in Nevada.

Email questions to whickey@brickjones.com.

Agnostic ex wants to nix parochial school

Q: My son just finished his first year of middle school in a large public school and he really struggled on many levels. I discussed placement for next year with my ex and he ignored what I was saying. I applied for my son to attend a small local parochial school. My ex and I both went to parochial schools through high school. My ex refuses to allow our son to attend. Shortly after the divorce he became agnostic and now says Christianity is evil. I had to get a court order to continue taking our son to church several years ago.

I am not looking for financial assistance from him. I just want our son in a different environment next year. Can my ex stop me from sending him? He seems to think he can but I have custody — my ex only sees our son on Wednesdays and every other Friday night.

A: There is a difference between legal and physical custody. While you have primary physical custody, you probably have joint legal custody, meaning your ex has a right to have a say in where your son goes to school. First, double check the language from the last time you went back to court to get permission to take your son to church. It may be you were granted sole legal custody at that time or the right to make certain decisions. If that is the case, you have no issue.

Assuming you do have joint legal custody, you need to immediately file a complaint for modification and allege a change in circumstances that your son had a difficult year in school and needs a different environment but your ex does not agree. You also need to file a motion to permit you to enroll your in son the new school for September and ask the court for a speedy hearing on your motion. Even before the pandemic the courts were overworked and under staffed. That has only gotten worse in the last few years so getting a quick hearing is critical to changing schools in September. Depending on how hard your ex fights it, you may have trouble getting the court to enter an order this summer.

If you go to the motion hearing and your ex is advocating strongly for keeping your son in public school, ask the judge to have the probation department interview your son. This is a process similar to a Guardian Ad Litem investigation but is much quicker. An experienced social worker/probation officer will ask your son things like what he liked/disliked about the public school, where he wants to go to school in September and why. Then the probation officer will report their findings to the judge. The judge may make an order allowing the change of schools.

Where this is not your first rodeo, you should ask for sole decision-making authority for educational and religious purposes in your modification complaint so there is no next time.

Using family money to fund legal fees

Q: In a recent column, someone was complaining that their spouse wanted half of the money one party was receiving as loans from family to fund litigation. It wasn’t clear to me why this is wrong. My lawyer says that when we are ready to move forward, she will ask the judge for an allowance of legal fees to level the playing field so I can also have a lawyer. My husband gets a lot of gifts from his family that we use to pay our expenses. Now I am nervous that he will get a ton of money from them to fight me for our kids and I might not be able to afford an attorney. My husband has a drinking problem and regularly loses jobs, so his family steps in and gives us money. He has been out of work for a while and says he is now the primary parent and deserves full custody. His family doesn’t know about his problem and I have spent years helping him save face with his parents. I am worried he will lie to them and make me the bad guy — especially when I look to put conditions on his parenting to keep the kids safe. Should I be worried?

A: There is a difference between receiving loans and receiving gifts that have historically been given and are used to supplement his income. Loans imply repayment at some point. No judge can order a family member to loan other family members money to pay fees. When someone does borrow from family to pay legal fees, the debt is solely that of the borrowing party rather than a shared marital debt.

When gifts are made, a judge can order any funds received to be shared “if and when” received. In that way, you don’t have third parties controlling the litigation for the wrong reasons. This is even more true in situations where gifts were historically made to supplement income and lifestyle because one party is habitually unemployed or underemployed. The short answer is your lawyer can ask for a division of gifts to level the playing field because he has access to money that was historically received during the marriage that you cannot access.

That said, here is a different idea altogether. If you have a reasonable relationship with his family, go talk with them. Explain what you have been covering up for him and your concerns for the children’s safety in his care. Ask them for help Ask them to intervene with him and try to get him help. Ask them if they are willing to supervise his parenting time, which will ensure your children’s safety when in his care. Many parents side with their adult children in a divorce because they fear losing contact with their grandchildren. Also invite them to the kid’s activities. If you keep them connected and ask them to help protect the children, you could be pleasantly surprised at how supportive they are.

Ex refuses to put house up for sale

Q: My ex was unable to refinance and buy me out of the house. Our divorce agreement says if that happens she has to list the house for sale. We really spent a lot of time on this provision because I knew this was going to happen. We had to agree on a broker and if we could not agree, a special Master was put in place to choose one. As I predicted, we needed the special Master — a former judge — to choose our real estate agent.

I signed the listing agreement with the broker chosen by the Master but my ex refuses. I don’t know what to do next — I am tired of paying all this money for her to just ignore orders. Is the Master’s report the same as an order? Can I file a complaint for contempt because she didn’t do what we were told to do? Is there any way to get her ordered to pay the Master? And if she isn’t out by the end of the school year, can I get the kids enrolled in the town I now live in so they don’t have to change high schools mid-year?

A: Often times a Master appointment includes the right for the Master to re-assess fees based on the conduct of the parties. If yours does, you should first go back to the Master and ask that all of the fees be shifted to your ex for her failure to operate in good faith. Where a Master has more time and fewer cases than the judge, your request may be better received there. Next, file the Master’s report with the court along with a motion to adopt it as a court order. Now you have a built-in fee shift and an order so you can now file a complaint for contempt. Ask for an order of legal fees for the contempt as well.

You are not going to get a change of custody or school system on a complaint for contempt for her failure to list the house for sale. But, you can also file a complaint for modification asking for an adjustment in the parenting plan and an order that the children go to school in your district. You will need to cite your ex’s failure to sell the house in a timely manner, which will then cause the children to change school districts mid-year, something that is not in their best interests as a change in circumstances.

But, a word of caution before you go to that extreme — if your ex is able to afford any housing in the current town she is likely to avail herself of that option so your children don’t have to change school systems in high school. If you want to avoid an unnecessary unsuccessful modification action, you should have a conversation with her first about your plans — that might be enough to light a fire under her feet for all purposes.

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