Q. You know how the advice to clients is to document interactions and exchanges? Well, how is that used? I feel like I’ve written so much and don’t know how to synthesize it or make it less cumbersome for myself to write out. Is demeanor important, what he says/does, how our kids appear, or just a date and cut-and-dry description of the events?

A. The documentation is used for different purposes which makes it hard. If you are still living in the same home, documenting interactions may become necessary to help prepare a detailed affidavit in support of a motion to vacate the home. This is where you need a very detailed account of interactions because you will need to recall what was said, who was there, the tone and demeanor and how you felt / what you did as a result of the interaction and how your children behaved. The standard for a motion to vacate a home is difficult to meet. You need to show the judge in a short and busy motion session that there is risk to your health and welfare and potentially that of minor children for the two of you to continue living under one roof.

The same is true if you are documenting parenting exchanges and there are negative interactions between the parents at the times of pickup/drop offs.

If a Guardian Ad Litem investigation takes place, you will be interviewed. Having notes to review in advance of the interview which are enough to jog your memory is sufficient. You can even bring your notes to the interview if you are worried about remembering and you can ask the GAL to allow you to check your notes if memory fails.

If these are not the issues you face, documenting can still be important if your case does not settle and you are going to be deposed by your spouse’s lawyer and/or have a trial. In those circumstances, having bullet point notes you took at the time of an event – including the dates – can make it helpful for your preparation to testify. Don’t try to memorize dates, having a general sense of when things occurred will suffice.

Email questions to whickey@brickjones.com

Q. My wife and I are finalizing our divorce agreement in mediation and are stuck on child support. My wife stayed home and raised our son from the time of his birth. I encouraged her to return to work once he was in school – but she didn’t want to. When Jack was 10, my wife received a sizeable inheritance and from that point on used that as an excuse not to return to work – we no longer needed the money.

Fast forward to now, she is keeping her inheritance and I am keeping both of our homes and my retirement worth almost as much as her inheritance. Jack just started Emerson College. We did not save money for college because my wife said she would use her inheritance. She changed her position and instead of paying for college she wanted us to each contribute half the cost of UMass Amherst with Jack paying the rest. I would prefer to just pay for all of Jack’s college education.

I had hoped paying for college would mean I don’t have to pay child support. My wife wants full guidelines support in addition to my paying everything for college. She says her income is zero because she doesn’t work so the weekly support is almost $600. We are at an impasse.

A. If I was your lawyer, I would be making an argument about deviating from the child support guidelines because you are paying 100% of the college expenses. When support is calculated for college age children and the parents are paying for college, the judges have discretion to deviate from the child support guidelines and order something less than what the guidelines calculate.

I am not sure she is right that she has zero income. Doesn’t her inheritance throw off dividends and interest? It is not being divided as part of the divorce settlement so you can argue that her investment income should be used to calculate child support thereby reducing your obligation.

I suggest you try to negotiate once more by presenting her with a spreadsheet showing what the child support will be if her investment income is included. Take that smaller amount and figure out which is more – the child support or half the cost of UMass Amherst in a given year. If it is laid out properly, she should see for herself that taking less child support in lieu of college contributions is better for her bottom line.

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Q. My soon-to-be-ex wife was a high school math teacher before we had children. By agreement she stayed home when our twins were born. She was going to return to teaching when they started school. Instead, she started volunteering for a non-profit and became employed as their bookkeeper. Our kids are now seven and we are divorcing. We agreed to an equal parenting plan so I had to cut back on the overtime I used to work so I can actually parent our boys during my time.

My wife continues to do the books for this non-profit for about 30 hours per week for just above minimum wage. She used to teach in a wealthy town earning triple what she currently earns. She refuses to return to the classroom. I recently learned whenever I have our kids, she is in Rhode Island with her new boyfriend working remotely. I suspect this is why she refuses to discuss going back to teaching.

My lawyer says I cannot ask the court to order her to return to teaching. But, unless she earns more, I will have to sacrifice my parenting time for overtime hours to pay support. Do I have any other option?

A. If the historical earnings are significantly higher as you say and the underlying reason for remaining underemployed seems to be a lifestyle choice, you can ask a judge to attribute an income to your wife. You will need to hire a vocational expert. Generally, this is a person who has an understanding of the job market in your wife’s profession and can testify at an evidentiary hearing before the judge.

If you go this route, your lawyer can help you identify and hire an appropriately credentialed expert. Your wife does not need to agree to cooperate. You will need your wife’s resume and tax returns or W-2 showing her income the last time she was employed as a teacher. You will need to answer questions about your wife’s health, your children’s health, and any limitations which would prevent her from returning to her prior career.

Assuming the expert opines that your wife can return to teaching at her prior level and earning rate, ask the judge to hold an evidentiary hearing on your motion to attribute income to your wife. When a judge attributes an income to someone, the support calculation is based on the income they can earn rather than what they do earn.

Email questions to whickey@brickjones.com

Q. My ex and I were never able to reach an agreement in our divorce and we had a trial last year. He filed a notice of appeal. The appeal process seems to take a while and the lawyers have not even filed their briefs.

Since the divorce, my ex has refused to cooperate with the recommendations of our child’s doctors and will not agree to put her on anti-anxiety medication. Her anxiety is really bad and I am very concerned about her transition to middle school in two weeks. Our divorce judgment says we have joint legal custody so I cannot agree to the treatment unless he also agrees. Further, I was working a lot of overtime during the divorce trial on a long-term project. Now that overtime is gone my income is significantly lower than it was at the time of trial. I have had to take unpaid time off to care for our daughter when she has panic attacks.

My lawyer said I can’t modify my divorce until the appeal is done. This just doesn’t seem right. Is there any way to get around this because I am very worried about our daughter’s health?

A. There is a simple way around this so long as there is a true change in circumstances since the divorce which it sounds like you have.

As a matter of law, a modification action in a domestic relations case is considered a collateral proceeding, and a trial court is not prevented from considering a modification action, even during the pendency of an appeal of the underlying judgment. The case on point is Braun v. Braun, 68 Mass. App. Ct. 846, 852-53 (2007). You should ask your lawyer to read it. The court in Braun stated the best practice is for the party seeking to modify a judgment during the pendency of an appeal to ask the Appeals Court to allow the trial court to enter a modification order.

If the Appeals Court grants permission, there is no reason both actions cannot proceed at the same time.

If the notice of appeal has been filed, but you’re still in record assembly at the trial court and the case has not been “entered” in the Appeals Court, you do not even have to ask the Appeals Court for permission to proceed on the modification action.

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Q. My husband is career military. Depending on where we live, his housing allowance fluctuates. Most recently we have been living in the same town as my brother and in Massachusetts his allowance is really high. My brother’s kids are all grown and out of the house, so he moved in with his girlfriend and has allowed us to live in his house rent-free. So, all of the housing allowance has been put aside in a separate savings account.

We have been married for 19 years – we have been talking about divorcing. Our 20-year anniversary is on Jan. 1. I am afraid he will file before our 20th anniversary to avoid paying full alimony. Is there anything I can do to prevent him from filing before then?

If we do get divorced, he said the housing allowance is either an asset or income, but it isn’t both – he says that is double dipping. I think it is both. Who is right?

A. You cannot prevent him from filing for divorce before your 20th anniversary. But, if you want to try to slow his roll, if you continue to talk about divorce, you can suggest mediation. Generally, when people mediate, the process takes 2-3 months or more which gets you close to the 20-year anniversary date.

The other thing you get at the 20-year mark if your husband is career military is lifetime health insurance. That is incredibly valuable so you should raise that issue as part of the discussions as to why you want to make it to the 20-year mark. Maybe you can make some sort of trade off to get you the lifetime health insurance if he pushes back on this. It costs him nothing to provide you with the health insurance benefit. You can try to calculate the difference in alimony if you are married for 19 years 11 months versus 20 years meaning he retires at normal retirement age as defined by Social Security.

His housing allowance is a regular part of his income and will be considered for child support and/ or alimony purposes. However, the money you have saved from his housing allowance is also an asset. In this example, it is not a double dip. If he doesn’t want to split it with you, remind him that, but for your brother’s generous offer, there would be no housing allowance savings.

Email questions to whickey@brickjones.com

Q. I am divorced and have two children with my first wife. At the time of the divorce, we negotiated and agreed that I would create an estate plan leaving all of my assets to my two children. At the time, my children were two and four. Now they are 17 and 15. We made this agreement because I had cancer years ago and life insurance was cost prohibitive. I am remarried and have two more children who are five and seven.

I recently tried to get life insurance again because I want to be able to have a safety net for my wife and younger children if something happens to me. It is still cost prohibitive.

Is there any way I can change our agreement? My first wife was not at all open to this conversation. I raised this with my ex for the first time when my seven-year-old was born. Since then, she has demanded to see a copy of my estate plan each year to verify that there are no changes. Do I have any options?

A. You always have options. Your best option here is to file a complaint for modification seeking permission to change your estate plan to divide your assets between your wife and all four of your children. I have no doubt a judge will find your subsequent marriage and birth of two additional children to be a material change in circumstances which would allow you to revisit this part of your agreement. Also, your children are older now so they are that much closer to emancipation meaning the amount you need to secure is less which is another change in circumstances.

Have you updated child support since the divorce? If not, I suggest you run some new child support calculations. If you don’t know her current income, you can make a conservative guess or use what she used to earn. In this way you know what your exposure is for increased child support before you throw a complaint for modification on the table. Her best defense is a good offense so if you ask for a modification of the estate plan, she will counterclaim and say you need to pay more child support.

The new guidelines go up to the first $400,000 of combined income so your support could be much higher. Of course, if her earnings have changed significantly her support might go down.

Email questions to whickey@brickjones.com

Q. My soon-to-be ex has been dragging out our divorce for over a year. She has it made right now because I am paying child support and all of the house expenses – mortgage, utilities, insurance, etc. I have been living in my mom’s finished attic for a year because I don’t make enough to rent a place for myself.

Our pre-trial conference just got continued again – this time because her lawyer is going on vacation. Our next date is November. They still won’t answer my discovery requests (I’ve responded to all of their requests and supplemented my responses). And they keep scheduling and then canceling our settlement meetings.

I still have access to our Ring doorbell camera. Yesterday I saw her boyfriend moving into our home. My lawyer says he can’t ask the judge to order the house sold at this stage because where will our kids live. Why does her boyfriend get to move into our home where our kids live and why do I have to pay his housing expenses? Is there anything I can do?

A. You are right to be angry – she should not be playing house until your divorce is finalized AND you have no obligation to finance his housing. First step is to save moving-in footage from your Ring camera and get it to your lawyer to use in court. Next, ask your lawyer to file a motion to allow you to move back into the house to care for your children and have your soon-to-be-ex move out if she wants to live with another man. Most judges find introduction of a new partner to children before the divorce is over to be problematic.

As part of the motion, ask that your child support end and, instead, that she be ordered to pay you some child support and/or contribute to the cost of the house. This is likely to accomplish two things – first, your wife is likely to ask her boyfriend to move back out so she can tell the judge you are wrong and he is not living there. This is why you need the doorbell video footage to show the judge. Keep watching and also record his moving out assuming that happens so you can also show the judge the bad-faith. Second, this will probably get her to the negotiating table.

If she now wants to talk, try to reach an agreement on all issues and use the next court date to get divorced.

Email questions to whickey@brickjones.com

Q. I am getting married in October and my fiancé just told me that he had a child when he was 18 who is now 12. He has no relationship with the mother or the child and has been paying child support for years. He got hurt at work and fell behind in payments when he was out before he started receiving workers compensation. He just got notice that the mother is taking him to court for contempt because he fell behind. We are worried that my assets and income can be at risk in the contempt case.

Is there anything I can do to protect my assets? Also, once we are married, can I be ordered to pay his child support?

A. I highly recommend you and your fiancé sign a pre-nuptial agreement before getting married. This would serve to define each of your pre-marital assets, and you can make your pre-marital assets separate property so that under no circumstances could your assets come in to play as part of a contempt action against him. You can also define how much of your respective incomes will be contributed to marital assets and what, if any part of your income, you want to designate as separate property. If you do not like the idea of keeping things separate and apart forever, you can write in a so-called sunset clause which means if you marriage lasts longer than a certain number of years, the agreement is dissolved.

Regardless of whether you have a pre-nuptial agreement, the court should not consider any assets in your name at the time of the marriage to be something they can leverage for his child support arrears – just don’t add his name to the asset. Further, your income cannot be considered for his child support obligation in the strict sense. The court will not add your income to his in the child support guidelines worksheet. That being said, when the judge is trying to determine his ability to pay arrears, your contribution to household expenses will be considered because having your contribution reduces his need to pay all of the household expenses. The best way for him to handle this is to reflect only his share of household expenses on his financial statement with a footnote indicating that the amount listed is half (or whatever the actual percentage is) of the total expense and that you pay the other half. This eliminates the argument that he should report your income on his financial statement.

Email questions towhickey@brickjones.com

Q. When my ex and I got divorced several years ago, I moved to Virginia. My youngest child is heading to college in the fall, having chosen to attend a state school in Virginia. She can get in-state tuition by transferring her residence to mine without waiting a full year and proving residency.

My ex does not agree to this because she wants me to continue paying child support. I pay $250 per week. Our break on tuition is $15,000 for in-state students and we are obligated to equally share the cost of college once the 529 money is gone. I’ve tried to explain the math to her but the more I talk the angrier she becomes. Our daughter wants to go to medical school and wants to preserve as much of her 529 as possible to use toward medical school. If she is an in-state student, her 529 will cover all of undergraduate expenses and there will be significant funds left over for her later use. If she is an out- of- state student, she is likely to run out of money in her senior year.

What are my options?

A. Given her age, your daughter can decide to move to Virginia now and live with you to independently establish her VA residency in order to get in-state tuition rates. Her mother cannot control where she lives. If you have to go this route, once she moves you would then be able to file a complaint for modification to end child support. You should do this as quickly as possible because it takes a while for paperwork to process, and you will not be relieved of your obligation until your ex is served with the papers. And even then, you have to keep paying until the judge says you can stop, but the termination order should be retroactive to the day you serve the modification papers.

In the meantime, try again to have a conversation with your ex – maybe even have a family meeting including your daughter. Have your daughter be clear about her goals and need to limit the cost of her undergraduate education. Once your ex realizes that her relationship with your daughter is at stake, she may agree to sign an agreement for modification ending child support.

If not, she has no one to blame for what she will ultimately lose in this process but herself.

Email questions to whickey@brickjones.com