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.

It takes 90 days for divorce to become final

Q.        I work for a big company and carry our family health insurance.  When we reached our divorce agreement, I was required to keep the insurance in place for our kids and my now ex-husband but only for three months for my ex.  I understood I had to wait until the divorce was final to notify my employer which I did last month. 

I just got served with a complaint for contempt for failing to keep my ex-husband insured until three months after the divorce.  I do not understand what happened or why but, from the paperwork, it looks like my employer retroactively terminated my husband’s health insurance back to early last December when we saw the judge.  It also looks like my ex underwent every preventative exam and test known to man later on in December, probably because I had met the family deductible at that point in the year and he intended to get a lower level policy for himself this spring when his coverage ended.

He now has thousands of dollars in uninsured medical expenses that he is asking the judge to make me pay.  I don’t know why this happened or how I can fix it.

A. It sounds like your employer only has a copy of the Judgment of Divorce Nisi – not the Judgment of Divorce Absolute.  Once you appear in front of the judge with your agreement, the judge issues the Judgment Nisi which starts the ninety-day waiting period for your divorce to become final and absolute.  Until the expiration of those ninety days, you are still legally married.  During that time frame, if you were to marry someone else – it would not be valid.  If, as in your case, December 31st occurs during that time frame, you can still file a joint income tax return with your former spouse.  Most importantly for you, for purposes of employer sponsored health insurance plans, you are still married and thus he remains covered. 

Most people do not realize the court does not send any additional paperwork in the mail after the ninety-day waiting period expires.  The divorce becomes final and absolute merely by the passage of time.  You can get a copy of the final judgment by mailing a letter to the court requesting a certified copy of the Judgment of Divorce Absolute.  You need to enclose a $20 check and a self-addressed stamped envelope.  Within a few weeks, you will receive your copy. 

Meanwhile, notify your HR department ASAP of their error and ask them to reinstate your ex’s health insurance back to December.  Advise them that you are in the process of obtaining a copy of the final judgment and will provide it upon receipt.  Be sure to communicate this in writing.  If his insurance is reinstated, bring a copy of that notice to court.  If not, bring copies of your communications to HR along with your letter requesting the judgment absolute to prove this was not an intentional violation of the agreement.

Coming Soon! Private Arbitration Court for Family Law and Other Disputes

Those who were waiting through the pandemic to get divorced will know the frustration of delayed hearings, elusive dates and no end in sight. For anyone who doesn’t want to see their divorce drag on into 2022, Brick, Jones, McBrien and Hickey LLP is pleased to announce that we are building a private courtroom in our newly leased space at 250 First Avenue in Needham where family law and other legal disputes can be resolved.  Consider arbitrating your divorce in a private setting rather than in the state court system to reach conclusion in your family law matter.   

So what is divorce arbitration? Arbitration is a binding process that must be agreed on by the parties before commencing the arbitration. The difference between an arbitration and a mediation is that the arbitrator decides the case, rather than a mediator getting the parties to agree, which process is non-binding.  Arbitration is an excellent option for those who are unable reach resolution other than through the court system, which is experiencing a significant backlog of cases.  The arbitration process is a quicker and more efficient means to an end.  The process is also private, enabling divorcing parties to stay out of the public domain with their private affairs.  Another benefit is the ability to agree on the arbitrator, who is often a private judge or skilled attorney, rather than being assigned a judge at random. 

When Can I Arbitrate my Case?

The courtroom is a beautiful light-filled space with a black walnut judge’s bench, witness box, and two attorney’s tables.  Technology will permit its virtual or in-person use.  The courtroom will be for rent starting in June.  If you wish to replicate the court experience in a private setting to adjudicate your matter, please contact us to reserve your time.  Several of our experienced attorneys are also available to act as arbitrators who can adjudicate any aspect of or your entire family law matter in our private state-of-the art courtroom, enabling you to move forward in an efficient private manner. 

Surprise from ex: Retirement $ gone

Q. My husband and I are in the process of mediation.  He told me during our last session that I had to file joint tax returns with him and the mediator agreed it was the best plan because it would cost us more money in taxes separate.  But, I am worried.  I always thought I knew about our finances – turns out I was very wrong.  When we exchanged financial statements, I discovered his retirement is completely gone.  I don’t know when he took the money or where it went.

            I am a receptionist at a dental office and have very straight forward taxes.  My husband used to work at Fidelity and now he runs his own technology consulting business so his taxes are more complicated.  We have always filed jointly but now I am worried he is not being straight forward because our second largest asset disappeared. 

            Should I just file jointly or is there something I can do to protect myself?    

You said a number of concerning things.  First, you need to find out where his retirement went and not just accept that it is gone.  Did he move it to another management firm and just not disclose it?  Withdrawals of retirement trigger issuance of 1099’s and tax reporting so any withdrawals should show up on prior years tax returns.  Your first step is to review the prior returns to see if they show liquidation over time.  If not, you need to address the disappearing act.  Tell the mediator you need to know where the retirement went and why it was not reported on the tax returns if withdrawn before you can agree to anything else. 

This should cause the mediator to insist your husband produce documentation showing where the retirement went.  If it turns out he moved the money and did not disclose it on his financial statement, you need to consider whether he is someone you can continue to mediate with.  Mediation only works if you can trust each other.

If it turns out he really did withdraw the money, you need to know what he spent it on.  His income probably did not decline in 2020 as a technology consultant because everyone needed technology help setting up work from home options, but its possible.  If that is the case, there was a loophole last year allowing someone to withdraw their retirement without penalty.  Any withdrawals can be repaid over the next three years.

If you are worried about joint filing liability, ask for a stipulation to hold you harmless from anything he does wrong in terms of tax reporting so that you are only responsible for the taxes on your income.  If he agrees, have a lawyer draft the stipulation and, once signed, you can sign a joint return – it probably will cost less overall.  If he won’t agree, file separately – you can always agree to amend to a joint filing down the road once you have the information necessary to assess his honesty.

Moroccans can get child support here

Q.        I moved home to Morocco three years ago with our three children.  My husband stayed in Massachusetts.  Last year I filed for divorce but the court would not address the issue of child support – only custody and the actual divorce.  I was told the only the only thing they could do was open a file and send a request to Massachusetts to do an investigation in to my Ex’s income. 

That doesn’t seem quite right to me.  I don’t know why Massachusetts would do this or even who a request to investigate would be sent to.  My Ex ignored the divorce proceeding and has not supported me or our children since I left.  Is there a process to make him cooperate with an investigation initiated in Morocco because I cannot find one on the internet?  

There is a better way to do this.  Rather than fight with him about whether Morocco has jurisdiction over him for purposes of making financial orders, you should file a complaint for child support in Massachusetts.  You can voluntarily submit to jurisdiction in Massachusetts even though you no longer live here.  Because your Ex does live here, he cannot avoid the process here.  You should also file a Motion for Temporary Child Support asking the judge to set a temporary amount of support.  Ask for a hearing on that motion as soon as possible.  The good news is the courts are still hearing motions over zoom so you can attend from Morocco.

Once you serve him with a compliant for child support, you will have the right to ask for his paystubs and tax returns so you can determine his income.  Once you have that information, you can complete the Massachusetts Child Support Guidelines worksheet which will tell you how much child support he should be paying.  You should also serve him with a Demand for a Financial Statement so he has notice of the need to prepare the form before the court hearing.  You will also need to complete one because the judge considers both of your incomes in setting the support order.

If you seek child support in Massachusetts rather than Morocco, you will receive Massachusetts guideline child support – not support at the level you may expect to receive in Morocco.  I’m going to go out on a limb and say this will make a big difference for you and your children.

Then, when you have your support order established, I recommend you sign up to become a customer of the Department of Revenue for collection purposes.  In that way, if he decides to ignore the order and his obligations any further, DOR can enforce it on your behalf.  They have powers of persuasion when it comes to enforcement that the rest of us lack.

Seeking equal time with child while college looms

Q.        My Ex-girlfriend and I have one child who is now sixteen.  We have managed to stay out of court since he was only a year old.  At that time, we reached an agreement for support and parenting time.  I have always wanted equal time but have settled for almost equal to keep the peace.  Each week I have 3 days she has 4. 

It seems like I never get my share of a full vacation week – she always finds a way to interrupt.  And she always owes me money for uninsured medicals and private school which we are supposed to share equally.  Plus, I pay all of his hockey expenses which are thousands each year.  It just feels unfair at this point.  I want more time and I’m tired of chasing her for stupid small amounts of money. 

College is around the corner and I have saved enough to cover most if not all the costs.  I don’t know if its worth spending my savings to get more time.  What are my options?

You have a lot to consider.  Given your son’s age, he will have some say in his schedule.  I don’t recommend putting him in the middle, but have you asked him if he likes the schedule?  The answer to that question is really key to whether you should take any action.  If he doesn’t want more time at your house, it is not worth the fight.  If he is open to a more equal share of time, you need to do a bit more homework.

Go on the Massachusetts Trial Court website and search for Child Support Guidelines worksheets.  Run some calculators using your current income and zero income for her (unless you have some way of truly knowing what she earns).  See what your maximum exposure is for child support if the whole thing backfires and she convinces a judge rather than giving you more time you should be giving her more money.  If you have been paying the same support for 14 years, you could end up on the hook for paying more – possibly even if you “win” equal time merely because the guidelines have changed, and your income has likely increased.

Child support does not go away when your child goes to college.  It can be reduced but if he still goes home to mom for at least part of the time, you still pay support.  Depending on how much you have saved and where he wants to go, you could make an offer that you will pay 100% of his college costs in exchange for exactly equal parenting time now and child support ending when he goes to college.  

Without knowing her income I cannot say for sure, but if she consults a lawyer on the offer and earns enough that she will at least be on the hook for half the cost of UMASS Amherst which is the current standard, this could be over before it begins. 

Basic divorce misses the big picture

Q.        My Ex and I were divorced four years ago in another state.  We represented ourselves and missed some important things.  Our judgment merely divorces us because neither of us knew to ask for property division, custody or child support.  We had agreed to those things, so we thought we didn’t have to ask the judge.

            A year after the divorce, I married my current husband and we moved to Massachusetts.  My Ex moved to Colorado.  We sold the house and split the proceeds equally when I moved, but it seems he didn’t pay taxes on his share of the gain.  He now has some IRS trouble for that and some other things.  He claims he owes so much to the IRS that he can’t send me any money for our kids any longer and stopped paying in November. 

            I need the money to help support our kids – the $500 per month he paid covered all of their activities and braces.  The court made it all sound so complicated when I asked how to make him pay.  What should I do?

You cannot file a contempt for non-payment of child support that was purely voluntary.  You also don’t have a judgment awarding you custody of your children.  You should file a complaint for custody with a request that child support be established.  Where this was not done during the divorce, it can be done now.  Also prepare a motion for temporary orders asking the court to establish child support and a parenting plan.  Serve it all on him at the same time to expedite your hearing date.

You will need to prepare a financial statement, as will he, so the judge can set child support.  You can ask him to stipulate to a parenting plan ahead of time if your current division of time is working in an effort to limit the issues for the judge.  Then, once you have an order, you can ask your Ex to agree to make it permanent.  If he agrees, prepare a stipulation for judgment adopting the temporary order.

In the meantime, you should also register your divorce judgment by sending a letter of transmittal to the court registry along with a certified copy of the judgment and one other copy.  Be sure to include your names and addresses.  This will allow the judge to understand why you are now filing a complaint for custody.

Finally, you may also want to file a complaint in equity to confirm that there will be no further property division or alimony between you and your Ex.  If he gets desperate enough with his IRS troubles and sees what you are doing on the child support piece, he could bring an action for property division and/or alimony.  If he objects to jurisdiction, you may have to file for the property division / alimony in the state where you were divorced.

This isn’t a case of the court making it sound complicated, it is complicated. 

Spouse has wrong idea on child support

Q.        At the start of the pandemic my husband, an only child, encouraged me leave my job and go back to Ohio with our two kids and care for our elderly parents.  I moved in with my sister and her family.  She cares for all the kids while I care for both sets of parents – my in-laws have serious medical conditions.  Last week my husband announced that he met someone new, has moved her into our house, and wants a divorce.  He said he would “allow” us to stay in Ohio and that his lawyer told him he will only have to pay me half the guidelines child support because he will need money to travel to visit and no alimony because I am capable of returning to work. 

            I now realize his affair has been ongoing and he sent us all to Ohio so we would be out of the way.  I should have realized something was wrong when he only came out to visit once and never wanted us to take the “risk” of coming back. 

            What are my options here?  If I stay does he really only have to pay half his child support obligation and no alimony? 

If you have any desire to stay near family, you should immediately consult an Ohio lawyer.  Right now, Massachusetts no longer has jurisdiction over your children because they have been out of the state for more than six months.  I don’t know that your whole divorce can occur in Ohio, but it may be possible if you can say you were in Ohio when your marriage became irretrievably broken.          

If you choose to stay in Ohio and you can file for divorce there, you should.  It would serve him right to have to play an away game.  When dividing assets, figure out what it would have cost him to hire someone to care for his parents for the last year and ask for an additional award of assets in that amount to make you whole for his banishing you to Ohio to care for them – unpaid.

A court can order him to sell the marital home and give you a share of the net sale proceeds so you can prevent he and his new partner from getting too cozy in your home.  You can also ask for alimony, at least in Massachusetts, because you left your job at his request to care for his parents so he didn’t have to.  Make him explain to his folks why they have to hire a caretaker as you will be returning to paid work.

Generally, the “left behind” parent only gets to reduce their child support on account of visitation costs if you sought removal AND if he is actually traveling to visit.  That is clearly not your situation.  You should argue against any such reduction because he has proven over the last year that he will not visit, and your move was his idea in the first place.

Brick, Jones, McBrien & Hickey LLP Welcomes Barbara L. Nason as Of Counsel

Brick, Jones, McBrien & Hickey is excited to announce that Attorney Barbara L. Nason will be joining the firm as Of Counsel. Attorney Nason is a highly skilled mediator and negotiator who is dedicated to finding creative solutions to help couples divorce amicably.

“We are so pleased to have Barbara representing our firm as a compassionate and highly skilled mediator.” – Attorney Alex Jones, Partner

Attorney Nason will be focusing on mediation at Brick Jones McBrien & Hickey. She is adept at helping divorcing couples find solutions for their unique circumstances that more traditional forms of divorce litigation may not. She believes that mediation and collaborative law often work best for those who have circumstances that are served best by working with a neutral, compassionate mediator.

“I really enjoy helping couples resolve their conflicts in a positive way through divorce mediation.” – Attorney Barbara Nason

Divorce mediation is an increasingly sought after solution during the COVID-19 Pandemic. Families face huge disruptions such as the burden of assisting with their children’s education and delays in divorce court hearings. Divorce mediation often resolves quickly and has a high success rate.

Attorney Nason is a member of the Massachusetts Council on Family Mediation and Past  President of the Massachusetts Collaborative Law Council. She was a former member of the faculty that certifies attorneys and other professionals throughout the Commonwealth in Collaborative Law. She is often appointed by the Probate and Family Court as Conciliator and Mediator helping families to resolve their issues.

The law firm of Brick Jones McBrien & Hickey LLP, located in Newton, Massachusetts, focuses on all aspects of family law practice ranging from relatively simple uncontested matters to complex and prolonged litigation and trials.  The attorneys of the firm have vast experience in handling all types of domestic relations matters including: divorce, post-judgment modifications and enforcement actions, prenuptial and postnuptial agreements, abuse prevention orders, child custody disputes (including international child custody matters), paternity actions, equity matters and family law appeals and family court litigation arising from the use of assisted reproductive technolog

Keep college payment language generic in split

Q.        My husband and I are in the process of finalizing our divorce agreement in mediation.  We have agreed on everything but have three children who will eventually all be in college at the same time.  My husband’s parents are incredibly generous and we are sure they will help with costs but understand there are some drawbacks to what we might otherwise qualify for in financial aid if they help.  We are having trouble drafting the language about college right now.  The mediator told us because our kids are 12, 10 and 9, we don’t have to decide anything now.  I don’t understand why we shouldn’t address this now if we are in agreement.

            Am I wrong to want to get this done?  Will we lose out on financial aid if my husband’s parents do help?

The case law in Massachusetts says a judge cannot enter orders with regard to payment for college until the child is on the verge of going to college.  Because your children are not yet juniors or seniors in high school, it is premature to get too caught up with how college is being funded.  That being said, there have been some very recent changes to the FASFA which were part of the recent federal pandemic relief package passed in December relevant to your situation. 

Historically, if a grandparent wanted to help a child pay for college, the money would be treated as the child’s untaxed income and assessed at up to 50% by the FASFA formula.  That will no longer be the case.  Now the FASFA form will ignore the money being given to a child to pay for college from sources other than the parents making it easier for your in-laws to assist. 

There is a different issue.  Because your in-laws are obviously not a party to your divorce, and your children are not theirs, you can’t bind them to paying for anything.  So any drafting you may wish to do cannot involve grandparents. 

Right now, it is also unclear where your child will go to college.  Some of the existing FASFA changes may impact College Board which has created the CSS Profile used by many to determine how much institutional aid will be provided to future students.  FASFA has more of an impact on state schools and for private schools to determine federal and state aid eligibility.   Thus far College Board has not determined what changes it may make.

The change in legislation has also done away with the break you would have otherwise received on account of having multiple children in college at the same time.  This, of course will have a negative impact on your situation in coming years.

As with all new legislation there will be kinks that get worked out over time.  Your best bet is to include generic language for reviewing college financing when it is time for college.  Meanwhile, promote the children’s relationship with grandma and grandpa in hopes they remains generous at college time. 

Helping our Clients See Beyond the Conflict

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