Q. When my Ex-wife and I got divorced, our children were 6 and 8. Now they are 11 and 13. I live in Colorado and do not see them much. I have them for the first three weeks of July every year and half the other school vacations.

I have been asking my Ex to let the girls spend the whole summer with me for the last two years. She consistently turns me down. On top of that, my brother and his family live in Japan and I really want to take the girls to visit him. My Ex refuses to let me travel outside the country insisting I will not bring them back. There is no rational basis for her claim. I am a self-employed equine veterinarian – not an easily transportable vocation.

After my three weeks, my Ex usually enrolls the girls in sleep away camp for the entire month of August so she can work. Of course I pay half of the camp costs. So, there is no good reason they cannot just stay with me all summer. And letting them stay with me saves her money.

What are my options?

You can file a complaint for modification asking the judge to let your children spend the entire summer with you but for the first week after school gets out and the last week before school resumes. In that way your Ex still has two solid weeks with them and can take them away if she chooses. The fact that your children are now 5 years older is a material change in circumstances and lets the judge change the order. The fact that they attend sleep away camp for a month speaks to their maturity and ability to be away from their parents for long stretches.

Your biggest hurdle is timing. By the time you hire a lawyer, file the complaint, wait for a summons to be issued by the court, have your Ex served it will probably be June (depending on which county your Ex and children live in some counties take far longer to issue summonses than others).

When you file the complaint you should also file a motion for temporary orders to permit the increased time with your girls this summer and get a hearing date as early as possible. Also include a motion for permission to travel abroad with them this summer. Be sure to include in your motion that Japan has now signed the Hague Convention on Civil Aspects of International Child Abduction. This, along with your ties to Colorado, should give the judge confidence in your likelihood of returning as scheduled.

Do not be shocked if you get a vacation in Japan but not the whole summer this year. It is unusual for a judge to make the ultimate decision on a temporary order. But, sometimes you get lucky and the judge is willing to call it as s/he sees it leading to a prompt resolution of the entire case.

Q.    My Wife and I both come from generous families and have received cash gifts during our marriage.  Mostly we have saved the gifts for a rainy day. We each maintained separate investment accounts and when gifts came in we placed them in our individual accounts initially.  I often used the gifts from my family to take the family on a really nice summer vacation. My parents wanted to know we enjoyed the money and they always made family vacations a priority.

My Wife never used the money instead saying she was saving it so we could retire earlier.  Now we are getting divorced. I have been ordered to pay all of the family bills and move out.  I had to dip into my account to help cover costs. My Wife started diverting her income to her individual account.  Now we are stuck on the asset division.

My Wife thinks because she didn’t merge her gifts in with the family finances she can keep them.  She also says I have to divide mine equally because I used mine to support the family lifestyle. This just feels wrong to me.  Is she right?

A.    Your wife wants to have her cake and eat it too.

In Massachusetts, gifted and inherited property is considered part of the marital assets and a judge can order the gift divided or transferred between parties.  There are a number of factors judges consider in deciding how to divide marital assets. The most critical factors when it comes to whether or not to divide gifts or, if so, how, are the length of marriage, contributions to the marital estate by each party, needs of the parties, and opportunity to acquire future capital assets.  As a practical matter, most judges also consider when the gift was received and to what use it was put.

Your wife clearly has some understanding of how this works when she tells you that you used your gift account to support the family thus weaving it into the fabric of the marriage.  She, on the other hand kept her gift account separate and apart and never drew down on it to support the family. She thinks she is safe but your Wife made one calculated error.

In her greedy attempt to stash away her income during this process, she commingled her gifts with her earned income.  Without question her income is a part of the marital estate subject to allocation in a support order and division in an asset split to the extent saved.  By commingling the funds, she ensured her gifts are also ripe for the picking in the asset division.

 

Q.      My ex, Dorothy, and I have joint legal custody of our twin 12-year old boys, with me having the boys forty percent of the time. Our boys love and want to play sports all the time. My problem is that Dorothy signs the boys up for activities which occur during my parenting time. If I disagree, Dorothy says “Fine. Don’t pay. But I’m still signing them up.” Or she tells the boys I won’t let them do things.

Also, it’s important to me that our children have a strong faith-based character.  They like their friends and the music programs at our temple when we go there on my weekends. Preparation for their Bar Mitzvah at age 13 requires them to study and practice.

How can I prevent Dorothy from interfering with their Bar Mitzvah studies and my parenting time by her unilaterally signing them up for extra-curricular activities?

A.     Dorothy knows religion is important for you. So, in what might be diagnosed as a passive aggressive slap in your face, she pushes your important things to the bottom of the boys’ list. But joint legal custody means neither of you have the unilateral right to sign the boys up for anything which interferes with the other parent’s parenting time.

Try to work this out before rushing to court. Use emails in an effort to have a paper-trail you can use if a court case is needed. Also, if financially possible, if you agree to pay for all reasonable Bar Mitzvah expenses –other than her fancy dress – Dorothy might agree just to force you to give her a free ride.

If no agreement is reached within a few weeks, you need to promptly file two complaints: one for contempt claiming her conduct violates your joint custody; and the other requesting modification to prevent Dorothy from interfering with the boys’ studies for and attending their Bar Mitzvah. Attach copies of relevant emails showing Dorothy’s unilaterally signing the boys up for activities which occur during your parenting time, her refusal to cooperate for the boys’ Bar Mitzvah training, etc. Also attach a calendar which shows her unilaterally signing the boys up for activities which occur during your parenting time.

Also start a conversation with your children by asking what sports they like best. To perform better, children at their age typically narrow their activities to one or two sports. And ask what they liked about Bar or Bat Mitzvahs they’ve seen at the temple. And suggest, if they want to have a big party for their thirteenth birthday, then, like doing well in a sport, they need to now start training and practicing with a teacher to do well at their Bar Mitzvah.

In court the judge might say Dorothy’s unilateral sign-ups and failure to cooperate in the boys’ Bar Mitzvah preparation could be deemed not in the boys’ best interests. And that might result in dad having primary or sole legal custody. If she’s wise, Dorothy will pay attention to that wake-up call.

 

Q      Before marriage, my future husband owned a company. He insisted our pre-marital agreement say that all the money he took out of the business as taxable income would be joint property, that if we had children, I could be a stay at home mom, and, if we got divorced, he’d keep one hundred percent of whatever the company was worth at that time.

Ten years later my husband sold his business. He believed he could make more money buying and selling stocks. He didn’t ask for, and I had no say in his decision. And, because it was his new business, I believed he’d only invest money from the sale of his company.

Six months ago he moved out, saying he wanted a divorce. Shortly thereafter I learned he invested our joint money and lost over five million dollars!

He now wants to keep the money from the sale of his business and divide what’s left of the joint assets. That forces me to lose 2.5 million. Can he get away with that?

A    You’ve got to deal with a lot of “if, and’s, and but’s”.

First, he’ll claim you said he could use the joint assets. But the content of conversations between a husband and wife are not admissible in court unless there were others present who could hear and understand what was said. That usually eliminates whatever may have been said while young children were present. So review emails and other documents. If there was no such written agreement, a judge would probably order your husband to pay you half the joint money, plus half of what he lost.

Second, as is often the situation, your claim would be stronger if you prove he controlled the joint money and insisted you never open or read his mail. Your claim is even stronger if you also prove he never let you read tax returns, asking you to quickly sign just before they had to be filed.

Third, hire an expert in investing who is qualified to testify that your husband wasted money because his investments were the reckless equivalent of gambling by playing roulette in casinos or betting that rag-tag horses would win the Kentucky Derby. If such risks are proven, a judge could rule your husband used joint money to avoid risking his sale-of-company money. If so, it’d be inequitable for him to walk away with all of his assets intact after losing so much of what was rightfully your money.

Last, if the premarital agreement only says he keeps the company in case of a divorce, argue you’re entitled to half the proceeds from the sale of that company. After that your husband will eventually conclude its best to equally split the joint assets and to also pay you another $2.5 million. That’s the only way he can avoid a possibly far worse result. After all, when all is said and done, if he makes a bet, he’s been on a losing streak.

Q    My husband and I are trying to mediate our separation agreement. We’re stuck on the summer parenting of our three teenage children. One child is away at college. The other two are at a private boarding school. So they’ll all be home for the summer.

My husband wants to have the children with him for half of each summer. But, because he’s always on the go with his girlfriend, I’m concerned he’ll leave the children alone at which point they might hold a party, drink alcohol, have friends sleep over, etc.

My husband believes I’ve raised this issue because I’m jealous of his new relationship and that I want to keep tabs on him. Actually, insofar as his female friend is concerned, she is more than welcome to him!

I’ve asked that, when he or his girlfriend are not at his home during his parenting time, the children come to stay at my home.

What do you suggest?

A    While understanding and accepting your concerns at face value, all things being equal a judge will probably find it is in the children’s best interests to spend half the summer with each parent. So the two of you could agree on alternating weeks, alternating two-weeks, each having two four-week segments, etc.

Based on what you wrote, I’d guess he’d not agree to the children staying with you for the summer, with his having two or three weeks when he and his female friend want to take them on a trip or have them at his house.

At this age, the friends are more important to and have more influence on your children than their parents. So you need to have each child meet with you and your husband. The three of you need to develop a list of punishments to be imposed if they drank booze, partied, etc. when their then caregiver was away. A first offense would result in no cell or media use, or no car use for a week. A second offense would mean a two-week loss of those things.

If your husband won’t agree, then it’s far better to agree with him than to force a trial. But add that, when either of you travel during your parenting time, each must give the other advance notice. Then, during that trip, the children will then live in the other’s home and neither can recapture parenting time given up while travelling.

Of course, at this age, caring for children can be like running a hotel. You provide each child with food, clothing, a roof over their head, washing their clothing, cleaning their rooms, provide spending money, a car filled with gasoline, etc.

So as Coach Belichick says: “Do your job”. And hope that they won’t be harmed from a fall which occurs after stepping into a garbage-filled bucket.

If they reach age 25, they’ll appreciate what you did for them. In the meantime, don’t hold your breath.

Q Because of some marital problems, my wife got me to agree to move with our three children to North Carolina.  We each found and accepted new jobs. Six weeks ago I went to North Carolina to buy our new house. Last week she served me with her Massachusetts divorce complaint seeking a divorce, custody, child support, and asset division. Yesterday, she emailed announcing her move to Vermont and school enrollment of our children.

Can she do that?  

A She lived here with you and had a right to file and to leave the next day. You could file a motion to dismiss her divorce case claiming she has unclean hands. But, your motion should be denied – even though denial may be distasteful to the judge – because she complied with the applicable rules.

She probably knew that if she had moved the kids to Vermont while you still lived in Massachusetts, it, not Vermont, would have jurisdiction over the children. So she hornswoggled you to avoid that roadblock.

Did you really want to live in North Carolina? If not, then immediately instruct your Massachusetts lawyer to file a verified (signed by you under oath) emergency motion for temporary physical custody of the children stating: 1) you will promptly rent and move into a house in the same Massachusetts city or town where you used to live with the children; 2) you are putting the children’s best interests first by asking that they be in your custody while going to their familiar schools remaining with their friends;  3) you never intended to become domiciled in North Carolina and only went there to please your wife; and 4) are putting the children’s best interests before your own interests.

Also hire a Vermont private investigator to try to find out if your wife moved there to live with or nearby her new significant other. If so, that supports your claim she moved to Vermont for her own – not the kids’ – best interests.

If the judge orders the children back to Massachusetts – even if not immediately in your primary physical custody – you’ll also have a better chance of ending up with primary custody of the children. In making that order, the judge would give great weight to your wife’s putting her own interests first and failing to consider the children’s best interests as proven by her separating them from you and from their school-friends at a formative time in their lives.

If you don’t get primary custody of the children, at least the time to get to spend with them for your parenting time will be easier to exercise if you live in Massachusetts instead of North Carolina.

Q My custody and parenting-time trial finished a few months ago. I live in Chatham. After our separation, my husband relocated to Great Barrington, which is a four-hour drive each way. We’re still waiting for a judgment.

My husband and I each want our children (15, 12, and 10) to primarily live with us. Alternatively, during the school year, he wants our oldest (a daughter) to live with him, with the two younger children (boys) living with me, and then flip the arrangement during school vacations and holidays. This plan would – at a time when then need each other the most – effectively sever the relationship between our children.

Before trial, the court appointed a guardian ad litem. The GAL recommended the children remain with me. But just before trial, the judge – pursuant to my husband’s request – appointed a volunteer “ARC” – attorney representing children- for our daughter. That lawyer argued our daughter should live with her dad.
What do you think the judge will order?

A Here’s what you have going for you. Massachusetts law says it’s preferable to keep children together. And only GALs trained in social work, psychology, etc., can make recommendations. The GAL probably met with the three children, their doctors, teachers, etc. I’d bet the ARC lawyer had no psychological training. And if so, that lawyer only talked with your daughter. So logically, the judge should give more weight to the GAL’s recommendations.

Also, argument by a lawyer is not evidence. So, unless your daughter testified, the judge merely heard oral representations from the ARC lawyer. So all that, plus – if your lawyer objected to the ARC lawyer’s representations – there was no proper waiver of your daughter’s attorney-client privilege, you have some good points to raise on an appeal.

Because an appeal takes two plus years, you must ask the judge to stay the judgment. If your request is denied, it makes no sense to appeal because as that appeal is decided, your daughter is likely getting ready to go off to college.

Think of things this way. Your daughter, without your knowledge, might become pregnant and get an abortion – all without telling either parent. If so, in the long run and although you don’t agree with her decision, wouldn’t it be best to let her live with dad and hope she’ll not be angry with you? Do you believe Usher’s custody fight with his ex-wife Tameka Foster – or Alec Baldwin’s fight with Kim Basinger – over the custody of their respective children was harmful for the adults and the children?

If you now try to work this out, agreeing to let your daughter live with dad and the two boys stay with you, I’d bet the rest of the plan will fall into place.
People tend to live more easily with a plan they create instead of complaining about a plan ordered by the judge.