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.

Spouse can’t deduct phone bill from child support

My children were gifted iPhones for Christmas by their father and his new wife. I am unhappy that there was no discussion ahead of time. I am not ready for them to have phones at ages 10 and 12 and I am not at all good at technology so I don’t know how to properly monitor what they are doing.  But, that’s not the biggest problem.  

He began deducting the monthly bill from my child support as of Jan.1.  He claims because it is an expense of the kids, it needs to come out of child support. I cannot make ends meet this way and did not agree to the phones in the first place. I’m not sure how this is now my sole expense.  When I told him it was not OK, he then said the phone are at the very least, an extra-curricular activity that should be shared equally.  

I don’t want to waste my limited time to take him back to court but this just doesn’t seem right. Our agreement requires that we agree on any new extra-curricular activities before enrolling. If I take him back to court to get the child support back, can I also ask that he pay for me to take classes to learn how to deal with security for their phones?

You have every right to be upset about this. First, to be clear, he does not have the right to withhold child support for payment of something he thinks is a child expense — especially a gift he gave that he did not discuss with you in advance. Yes, the support you receive should be used to pay their expenses. But he also does not get to choose what the expenses of your household are. If you file a complaint for contempt for withholding child support, he will be ordered to pay it back. But, certainly the process will take up one of your most valuable resources — time, something a judge cannot give you back.

I offer two suggestions, you can send him a demand letter stating your disagreement and advising if you have to go to court you will be asking him to not only pay the unpaid child support but to either return the gifts because you believe it is inappropriate for children their ages to have phones or, alternatively, pay for you to take some classes at Apple to learn how to protect them in their use of the phones. If you think that would cause him to blink, start there.

The second suggestion is to acknowledge the children will soon be old enough to have phones. If you contribute to the cost, you can demand access to their passwords and have control over the security features so you can do your best to protect them. Condition your agreement to contribute as an extra-curricular on his paying for you to take a class on security and giving you control over their use.

Dividing retirement assets gets complicated

My wife and I mediated our divorce and did not have lawyers. We are now struggling to figure out how to divide our retirement accounts. I have a 401(k) with my company and she has an IRA at Fidelity. They seem to have different rules for division and none of it is clear. Our mediator didn’t give us much guidance on this piece other than to hire someone to do it. We are still trying to keep costs down and don’t want to spend a ton of money hiring someone to do it.

Is there a website or some other place you can direct me to for samples of how to do this so I can try it on my own?

Dividing retirement assets is more complicated than you might suspect. Depending on the type of account, there are different rules and processes. I encourage you not to do it all on your own.

The IRA is pretty straightforward. Your wife needs to sign a letter of instruction directing Fidelity to do a tax-free rollover of the appropriate percentage of her IRA to a Rollover IRA account in your name. If you do not yet have such an account, open one at Fidelity. It is easy enough to do online. Be sure she includes a copy of your judgment of divorce along with the first page, signature page and the relevant page of your divorce agreement referencing the division in the instruction letter. Also include the account number from which the rollover will come and the account number into which the rollover funds will be deposited. Then, you need to send a letter to Fidelity authorizing them to accept this rollover into your newly established Rollover IRA account. Last time I did this, there was no fee for the transfer and you can certainly do this part on your own.

The more difficult piece is the 401(k). There are lawyers who specialize in drafting Qualified Domestic Relations Orders as well as actuaries and Pension Appraisal Services. They charge a wide range of fees and you should really hire one and split the cost. The firm I regularly send my clients to charges a few hundred dollars to take care of it for you. They will do the drafting, make sure the draft is pre-approved by the plan administrator and send it to you for signing and filing with the court. From there, you and your ex will need to file a joint motion to approve the QDRO and after review the court will approve it and send you a certified copy. Once you get the certified copy, you will need to mail the certified QDRO from the court to the plan administrator and request they implement the QDRO. It is well worth your money to hire someone for that piece — given how lengthy the process is, the last thing you want is to do it wrong and waste months having to start over.

Is alimony in play when ex moves in with neighbor?

My divorce agreement requires me to pay alimony to my ex-wife until my normal retirement age which is 10 years away. I recently became aware that my ex has moved in with our next-door neighbor who lost her husband a few years ago. My son asked me how I felt about his mother’s new partner and seemed genuinely concerned that she is now with a woman. It never crossed my mind that they were anything more than friends who decided to become roommates. He was so sure of himself that I am now wondering. I think if she is living with a new partner, regardless of gender, I might be able to stop paying alimony. It would be nice to stop paying so much alimony.

How would this work if I were to take some action here?

The alimony statute in Massachusetts contemplates the ability to suspend, reduce or terminate alimony “upon a showing that the recipient is maintaining a common household with another person.” So, before you do anything, you need to determine if your ex and the neighbor meet the definition of sharing a “common household.” If you want to change your alimony, you would need to show a judge that your ex and the neighbor (a) have made oral or written statements to others regarding their relationship, (b) there is an economic interdependence between the two, (c) they are engaging in conduct in furtherance of their life together, (d) there is a benefit to either or both of them in their relationship, (e) the community recognizes them as a couple, or (f) any other relevant information.

One way to do this is to file a complaint for modification asking for a reduction and/or termination of alimony. Once you serve the complaint and summons on your ex, you can do the discovery necessary to prove the above factors. For example, ask for bank records and household bills to show who is paying what. Ask for copies of any rental agreement or mortgage statements. If they have joint bank accounts or one is paying bills in the other’s name — that is helpful to your cause. Then, talk with people who know them — do they hold themselves out as a couple? Or just friends/roommates? If this option doesn’t sit right with you, there is another option.

Invite your ex to meet you for coffee or lunch. Be frank about what your son told you and ask her whether she is in a relationship with the neighbor and where she sees it going. Depending on your relationship you can tell her why you are asking, or not — I’m sure you are curious regardless of the impact on alimony. If she admits the relationship, ask her to agree to reduce or eliminate alimony while she is in the relationship. If she denies the relationship, you know her well — how good of a liar is she? Then consider if you think she is lying to you, will a judge believe her?

Ex now needs help seeks alimony

Q. My Ex-wife has a brain injury.  Recently she was pulled over and her license taken away.  Her job involved significant driving so she is claiming she cannot work and has no means of supporting herself and now needs alimony.  Because of her condition, I have our children almost all the time and she pays no child support.  I don’t know how I can be expected to pay her alimony now that she says she can’t work and be solely responsible for our kids.  I will need to get a second job to make ends meet and yet there are not enough hours in the day to take care of our kids and work two jobs.  

Will a judge really order me to pay alimony in these circumstances?

  1. As you have probably known me to say in prior columns, alimony is still based on one person’s need and the other person’s ability to pay.   If she has a need and you do not have an ability to pay while also being solely responsible for the basic needs of your children, she will be disappointed in the outcome.  

Brain injury or not, your Ex has some responsibility here and should be encouraged to help herself – even if that means you have to ask the court to order her to help herself before ordering you to pay alimony.  If it becomes clear that she is truly incapable of helping herself, you should ask the judge to appoint a Guardian to stand in her shoes in this action.  In that way, the Guardian can take the necessary steps to seek alternate forms of income for your Ex which don’t involve your wallet.  For example, if she was laid off because she no longer has a license, presumably she would qualify for unemployment compensation for a period of time.  The unemployment will buy time necessary for her to undergo an evaluation to determine if she is fully disabled as defined by the Social Security Administration.  If she is fully disabled, your Ex should qualify for Social Security Disability Insurance.  The nice thing about SSDI is there may be dependent payments in addition to the payments going directly to her which will help you support your children.

Before you raise these issues to a judge, you could offer to help her apply for unemployment and SSDI and suggest that both she and the children could benefit greatly from these resources.  It may be she is desperate and doesn’t know how to ask for help.  Depending on the nature of her brain injury, she may not be able to fill out the necessary forms herself.  Extending an offer to help her might change the entire dynamic of your relationship.  But, if not, you still have the option of asking the judge to either order her to do the paperwork or to appoint someone to do it for her if she turns you down.

Ex wants to swap house for child

Q. I have been living in Rhode Island for the last eighteen months.  I moved back home with my parents at the beginning of the pandemic because our then infant was premature and my husband is a first responder.  I learned a few months after I left that he began having an affair.  About six months ago, he moved his girlfriend in and filed for divorce.  

I’m having trouble navigating two states at once.  I understand since I’ve lived outside Massachusetts with our daughter for more than six months, Rhode Island is now where custody and child support gets figured out.  He wants to have everything done in the Massachusetts case.  In my answer I objected to everything except property division.  I am thinking of filing a separate custody action in Rhode Island and asking for child support.  He hasn’t paid anything since I left and is telling me he can have me forced back to Massachusetts with our daughter even though I now have nowhere to live.

He also wants me to agree to accept $200 per week child support and let him keep the house and I can keep our daughter.  I know we have at least $500,000 in equity in the house but I also know he will have trouble refinancing and buying me out.  I can’t believe he is essentially asking me to buy our daughter.  This feels like blackmail.  What should I do?

  1. Although this seems complicated, aside from his willingness to sell his child, it is actually fairly straight forward.  You should hire an attorney in Rhode Island and file a complaint for custody and child support.  Massachusetts does not have jurisdiction to make decisions regarding your daughter and even if the two of you agree to deal with the issue in Massachusetts, there is case law which prohibits the court from acting without jurisdiction.  So, file that part in Rhode Island and ask Massachusetts to dismiss custody and support.  

Once you have a custody and child support order in Rhode Island and know what the logistics and numbers look like, you can agree to include them in a written separation agreement in Massachusetts but make clear that part of the agreement follows Rhode Island law and that jurisdiction on those issues remains in Rhode Island.  It is good to have your Rhode Island orders registered in Massachusetts anyway in case you ever need to enforce any part of it.

As for the house, do not even discuss a monetary exchange for custody of your child.  If need be, hire someone to appraise the home so that you know the true value.  If he cannot afford to buy you out at fair market value, he has two options – sell it because only then will you both realize the actual value for the home or he can ask his girlfriend to buy your equity.  If he has given her the rights to live there, seems only fair that she pay for those rights.

There’s no winning when kids are in the middle

My ex left me for someone in his office. He has our children every other weekend and one night each week. I didn’t want the kids to meet his girlfriend right away so we have a clause in our agreement that prevents either of us from introducing the children to a new partner until we have been divorced for six months. We have only been divorced for one month.

Yesterday I was visiting a neighbor and she had my ex’s Christmas card on her table. There are pictures of him, our children and his girlfriend together during his summer camping vacation. Neither he nor the children told me she was there. I am so angry that he didn’t keep up his end of the deal. I want to file a complaint for contempt. Do you think I will win and if so, what can I win — can I take away some of his parenting time?

While I’m sure it came as a shock to see the photograph, before you run off and do something that will hurt your children even more — like trying to penalize them for an error in their father’s judgment — you need to think this through. There is no winning here. It is unclear whether your divorce agreement was in place at the time of his summer vacation. If you were in the process of negotiating the agreement and it was not yet signed, he didn’t violate anything and your contempt will not only fall on deaf ears, but it will make you look vindictive. When you negotiated your agreement did you ask him if the children had already met her? If so and he lied about it, your anger is understandable. But if you never asked, that is another thing you need to consider before going on the offensive.

The more troubling piece to me, which it appears you are overlooking, is why didn’t your children tell you about her. Did your ex ask them to lie? Or did they have a sense telling you would hurt your feelings and they were trying to protect you? Either scenario is not good. You cannot put your children in the position of having to be the adults regardless of their ages. If he asked them to lie for him, that is a bigger conversation you need to have with him directly. Then the two of you need to have the conversation with your children that it is not OK for them to lie to either of you even if the other asks them to.

If that is not a conversation you can have together with your children, you should get professional help by way of a Parent Coordinator or family therapist rather than bring this matter before a judge. On these facts, no judge is going to take away his parenting time. Instead you would both likely be sent to some sort of parenting class to learn better communication and conflict resolution skills.

Still waiting for child support decision

My divorce trial happened last March. It took two days and one of the issues was child support. I understand everyone is busy right now and my lawyer keeps telling me to wait when I ask about getting the decision. I don’t know what is reasonable at this point. I do know that the child support guidelines changed in October and I’m worried that our order will be wrong.  

At the time of our trial, I was still home with our son, but he started kindergarten in September and I’ve since gotten a job. He attends extended day afterschool and I pay for it — my ex refuses to contribute because there is no order requiring contribution. I also just learned that he changed jobs and rumor has it is earning a lot more. My lawyer doesn’t want to do anything until we get a judgment. But, if we know the judgment is going to be wrong, I can’t understand why it makes sense to wait.  

What do you suggest and how long is reasonable to wait for a decision?

Right now, there is no hard and fast rule about how long you might wait for a decision. There are time standards and suggested guidelines but even pre-pandemic, depending on the judge’s case load, some judges were backed up as much as a year in rendering decisions. Most two-day trials should get judgments within six months so it almost feels like any day now for you. But, in this post-pandemic world, there is no real way of knowing. If you insist your lawyer formally inquire, there is always a fear of negative consequences.

I do think you should push for a motion to modify the existing temporary order of child support. If you do, both sides will need to submit updated financial statements as well as new child support guidelines worksheet, assuming you can get a hearing. Of course, it is equally possible that if the judge sees you are scheduled for a motion hearing they will issue a judgment rendering your motion moot.

Because the judge can only issue a judgment based on the evidence presented at trial, you are correct in that the judgment will likely be wrong when compared to current child support guidelines. If you receive a judgment that is no longer accurate under the new guidelines, file an immediate modification of child support and ask for a temporary order hearing to adjust the support to the correct level.

To answer the why wait piece of your question — I do not know who your judge is but I can tell you some of the judges have moved counties since March. It may be that your judge is now sitting in another county and your lawyer does not know how to navigate getting something heard out of county and/or is worried a replacement judge will refuse to hear the case. While that may sound silly to you, to us lawyers it can be a difficult path to navigate.

Divorce issues can be arbitrated separately

I read last week’s column and am thinking about arbitration as well. I heard that you can limit the family law issues that you agree to arbitrate and wonder if it makes sense for my situation. Right now, we have an agreement about dividing the assets but we cannot agree on custody or support. My wife thinks I don’t earn enough money and a judge is going to attribute a higher income to me. I used to earn a lot more but had a career change during the pandemic after my old company closed. I love my new job and the flexibility I have but I do earn about $50,000 less per year. I am not sure I could find another job earning at the higher rate but even if I could, it would mean I would not have the flexibility to spend as much time with our sons as I now spend. I want to be there for them and I am willing to work hard to support them. Should I agree to arbitrate and can the arbitrator decide both these issues?

Great question. Limited issue arbitration is an avenue forward for you. You could, for example, agree to a binding process with an arbitrator so that the arbitrator decides the limited issues in dispute, which in your situation, sound like a parenting plan for your children, as well as a dispute around what you can or should be earning, which may or may not impact support. The only concern in deciding issues piecemeal is that in some situations, one could have an impact on the other. For example, if you had an arbitrator deciding your entire divorce, they could decide to give your wife a little more from the marital estate in exchange for a break on support you might otherwise pay if you were earning $50,000 per year more as you used to.

But if you’ve already agreed to divide the marital estate in half, the arbitrator won’t have the ability to do something creative like this and will simply be faced with deciding the two issues you present to him or her, independent from what you have otherwise agreed to.

Perhaps mediation, which is a non-binding process, might be a better avenue for you if you want to maintain the ability to be creative and deviate as may be necessary from the agreements you already have to enable resolution on the case as a whole. But if you do not think you will be able to agree on everything with the assistance of a neutral mediator, and/or if you want finality quickly, arbitration is the way to go.

Just beware, the best interest of the children is, by statute, something that must be determined by a judge. So be prepared for the judge who ultimately approves an arbitrator’s award to look closely at the parenting component before adopting the arbitrator’s award and finalizing the divorce judgment.

Helping our Clients See Beyond the Conflict

©2022 Brick Jones McBrien & Hickey LLP. All Rights Reserved. The information presented on this website should not be construed to provide legal advice, nor does it constitute the formation of an attorney/client relationship. Read the disclaimer.