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News from the Firm
Does my wife have to testify regardless of her situation?
Q. My wife is a second-grade teacher. She is pregnant with twins and was recently put on bedrest. She is due the first week of July.
The parents of one of the children in her class are in the midst of a difficult divorce. Last spring my wife filed a report with DCF because of bruises she saw on the child and things he said to her. Both children were taken away from both parents and placed with an aunt. The parents are each trying to get custody back.
A Guardian Ad Litem interviewed my wife last December. I just got a subpoena for my wife to appear at a deposition. I called the lawyer and said she cannot be there. He told me if she did not appear for a deposition, we would have to pay the costs for failing to appear and the judge could hold her in contempt. He said it is fine for her not to appear in person, but they will ask her questions over Zoom.
Does my wife have to do this just because they sent a subpoena?
A. Technically a subpoena is a legal document that does require someone’s presence. However, there are exceptions. In these circumstances, requiring your wife to be deposed is not reasonable even over Zoom. Given the circumstances, I suspect you are also under a fair bit of stress, and recommend you farm this task out to an attorney.
Your first step is to get a letter from your wife’s doctor stating her condition and explaining how stress could impact her health and that of the babies, and stating that she is unavailable to be deposed for the foreseeable future. Once the babies are born, she will need some period of time to recover and will be caring for newborns around the clock. The more detail your wife is willing to let the doctor disclose the more likely a judge will rule she does not need to be deposed.
Once you have the letter, file a motion to quash the subpoena and for a protective order which means you are looking for a court order to say the subpoena has no significance and your wife does not need to appear for a deposition. The reality is your wife set in motion a means of protecting this child, but others got involved after her call. These other people have just as much if not more information about the situation, so your wife’s testimony is not truly needed.
Email questions to whickey@brickjones.com
Want to waive alimony, but lawyer’s pushing back
Q. My husband and I want to agree that neither of us will pay alimony and neither of us will have the right to ask the court for alimony in the future. We asked the mediator to write the agreement this way and he did. Now we are running the language by lawyers and mine is adamant that I cannot agree to a future waiver of alimony if it “survives” because the “judges hate when people do that.”
I don’t really understand what is important about whether it “survives” – survives what exactly? I also don’t understand why judges would hate it. Can you help me understand what the big deal is?
A. When people reach an agreement in connection with a divorce, the terms of the agreement can either “survive” or be “merged” into the judgment of divorce. If the terms survive, that means those provisions retain independent contractual significance between the parties and cannot be changed in the future. If a provision is merged into the judgment of divorce, it means that one of the parties can ask the court to modify that part of the agreement in the future if they can prove there has been a material change in circumstances since the time of divorce.
Many people agree to waive past, present and future alimony as part of the divorce settlement. But just because the parties do not need the money now, or because there is no extra money now to pay alimony which one spouse needs, does not mean that situation will exist forever. For example, maybe there is no need now because both parties are working and earning sufficient income to support themselves. But, two years from now, maybe one gets laid off and is having trouble finding a new job with similar income – alimony might be warranted, but if your waiver survives you cannot go back and ask.
Some judges approve agreements containing surviving alimony waivers, others do not. I suspect you are in a county where there are a few judges known for rejecting surviving waivers so your lawyer is advising you should not agree to it.
Instead, you can put in language now which dictates when alimony will end if it is ever ordered in the future.
Email questions to whickey@brickjones.com
Ex collects alimony & rent while living with BF
Q. I just discovered my ex moved in with her boyfriend last summer and has been renting out our home to her cousin. I pay $5,000 per month alimony and am obligated to permit her to live in our home until our youngest, a freshman in college, completes her degree. We share the mortgage and expenses for the house and it is supposed to be sold once Lucy graduates. The monthly expenses are about $2,000 each.
I know I can stop paying alimony now that my ex is living with her boyfriend but it seems completely unfair that she has been pocketing my alimony for the last 9 months, collecting $3,000 per month rent and I am paying half of the monthly mortgage. Do I have any recourse?
A. First of all, you can probably stop paying alimony but don’t self help or you will find yourself on the wrong end of a complaint for contempt.
File a complaint for modification asking to terminate alimony retroactively to six months ago when she first moved in with the boyfriend. You will need to prove they are sharing a “common household” – evidence that your alimony is no longer needed because of the nature of her new relationship. Have no fear, you can file your modification complaint then do a bit of discovery to get the needed information to prove your point.
You can request documents from your ex and take her deposition asking her how long she has been in a relationship with him, who pays what, exactly when she moved in with him, where Lucy goes when she is home visiting mom from college, etc. Find witnesses who can testify that they hold themselves out in the community as partners.
You can ask the judge as part of the modification action to revisit the house provision since she is clearly not living there with Lucy and, instead, benefitting from a new stream of rental income. Ask for half of the rental income she received while you were paying half of the house expenses going back to the date her cousin began occupying the house. If necessary, you can take the cousin’s deposition and ask for production of the lease and records of all rental payments made.
The judge has equitable powers to resolve situations like this and for sure, it is not equitable for you to maintain a house your ex is renting out while continuing to subsidize her lifestyle with her boyfriend.
Email questions to whickey@brickjones.com
Ex backpedals on supporting kids’ sports
Q. I have twins who are very athletic high school freshmen. My daughter is a soccer player and my son is a hockey goalie. My ex and I committed years ago that we would allow our children to play club sports at high levels. They are each on elite teams which require intense practices, many games and tournaments in other states.
My ex is remarried and has a baby. We share custody equally. She now refuses to bring our daughter to any games on her weekends if it is raining or snowing. She refuses to let our son play for any other teams when they are lacking goalies on her weekends. Three years from now we are going to have to figure out how to pay for two in college. Athletic scholarships are realistic for both kids, but not if they don’t participate. My daughter’s coach recently told me if she does not start to show up, she will be cut from next year’s team.
Can I make my ex pay more for college if she doesn’t help out now to give them an opportunity to get scholarship money?
A. The short answer is probably not. Certainly if they were offered scholarships but had the offers rescinded for lack of participation, that would be a different story. How would you prove to a judge that a college would have offered them a scholarship had they played in more games?
Rather than take this issue up with a court, you need to figure out an alternative solution for your kids now. Yes, it is your ex who should be finding a plan for her weekends but if she isn’t going to and you can – you should make the effort. Assuming your kids actually want to play at the level at which they are competing, you should step in on her weekends. If you know your daughter has a game and the weather is predicted to be lousy – offer to take her to the game on your ex’s weekends or find another family on the team willing to take her. Offer to take her to away tournaments on your ex’s weekends – that is where the college coaches go to scout. This gives you more time with your daughter and allows her to stay on the team. Same goes for your son.
If your ex refuses, you ask the court to modify the parenting plan to allow her more parenting time during the week and you more weekends until they are able to drive themselves.
Email questions to whickey@brickjones.com
Ex must hold her horses on moving with kids
Q. My wife travels a ton for business and announced in January she was helping her company open a new location in Denver. Last week she told me she is pregnant and leaving me to move to Denver. There is no question the baby is not mine, so she had to come clean. She now tells me that she is taking our kids (ages 8 and 10) with her. She said she talked to them already and they want to move with her and the law says if the kids agree to go she can take them. They told me they will miss me but if they move, they can have a horse.
Can she just up and move with the kids halfway across the country because they agree to go? It doesn’t seem right.
A. It isn’t right and no, she cannot just say that your 8 and 10 year old want to move and just up and move them. You need to hire a divorce lawyer ASAP. You should file for divorce before she has a chance to put them on a plane in an attempted fait accompli. Once they are gone the case gets harder.
She can certainly ask the court for permission to move with the children as part of the divorce process. If she has been traveling significantly for work and you have been home caring for the children, she is not the primary caretaker. If she was the primary parent and had an opportunity to move, she could argue she has what we call a real advantage to moving and should be allowed to take them.
When the request to move happens before a determination of custody has been made, or when there is more of a shared parenting responsibility, the standard is whether the move would be in the children’s best interest. Especially where, as here, she has a choice – she can choose her children and not move. It is much harder to convince a court that the children should move when the standard is best interest as opposed to real advantage.
As far as your children’s consent to go with mom, they are just not old enough to have a say. The law does say if the children consent to go, she can move with them but the children have to be deemed by a court sufficiently old and mature enough to make an informed decision. They are not considering the long-term impact of you not being in their life on a daily basis. They are, as children do, only thinking about the horse mom promised.
Email questions to whickey@brickjones.com
When to bring up what ex said during divorce trial
Q. I am representing myself and we started trial last week. My husband’s divorce lawyer objects to everything I try to say. The judge is getting mad at me and keeps saying I can’t talk about what people said. Except my husband has been allowed to talk about some of what I said.
Also as far as I can tell it is not OK to talk about what we said to each other but it is OK to show emails we sent each other to the judge.
Can you help me understand the rules about when we can talk about what someone said? Our next day of trial is next month and I will get to cross examine my husband.
A. Rules of evidence are complicated and take years to truly understand.
In a nutshell, married people cannot testify about what is said to each other because of the marital exclusion. There are some exceptions – if you can show someone else was in the room at a time a conversation happened then it is not a private communication and you can testify about who said what. If you put something in writing, it has become a document that anyone could potentially read. This means emails, text messages, letters, cards, etc. are all evidence that can be offered to a judge during a trial.
If you have not already identified documents you want to show the judge as your evidence, you need to pull together any relevant documents ASAP and send copies to your husband’s lawyer explaining that you misunderstood the rule and you want to offer these documents as additional exhibits. She will probably object but if there is sufficient time before the next day of trial, the judge might let you do it. If you are told you cannot use the emails or texts because the trial order required you to produce them in advance, don’t get discouraged.
During your cross examination, you can ask your husband questions and if he denies doing something or sending a certain email, you can use the document to impeach him by showing it to him. If the writing contradicts his testimony, ask the judge to make it an exhibit.
If you are repeating what someone said for a reason other than to show the truth of the statement, the statement might be admissible. Keep this in mind when your husband is testifying. If you think he is testifying improperly, stand up and object.
Email questions to whickey@brickjones.com
How to fill out the financial statement form
Q. I am struggling to fill out the financial statement form. My lawyer said to just fill it out and don’t worry about it. But my friend said I need to be super careful because if we don’t settle even the initial financial statement can be problematic for me later on if I’m questioned about why my expenses changed so much during the process. Any advice on the right way to do this?
A. Your friend is right. It is better to spend the time and get it right than to rush to get it done and completely misstate your expenses, income and/or assets by overlooking something that might be important.
For most people, the income section is easy. You look at your most recent pay stub and transfer the income and withholdings to the correct lines on the financial statement. For interest and dividends on savings and investment accounts, I generally recommend taking last year’s reported interest and dividend income and divide by 52 weeks and divide in half as half will be attributed to your spouse. Your income from prior year comes directly from your W-2 from last year.
In the asset section, if you have online access to your accounts, log in and fill out the current balance in each account. Take a screen-shot and send it to your lawyer as back-up documentation. Otherwise look at the last available statement for each account for the balance. List out the institution and only the last 4 numbers of the account (do not put the full account number or your full Social Security number on the form). For the beneficiary column, I list whose name is on the account.
The expense section takes the most work. In order to do it right, you should look at a year’s worth of every credit card and bank account you use. I recommend making a large spreadsheet of categories and each time you see an expenditure for a category put in the amount. Total it all at the bottom and divide by 52.
It is often worthwhile to differentiate between your individual expenses and expenses for children as many of the latter can later be carved out and shared with your spouse on top of support.
A new case was decided this week which says if you regularly set aside savings during the marriage, you can add savings as an expense on your financial statement.
Email questions to whickey@brickjones.com
Does cheating stay-at-home dad have to leave?
Q. My wife discovered that I have been having an affair and told me to leave. I have worked from home for years to be available to drive our kids to all of their after-school things each day. She travels extensively for work and has for the bulk of our marriage. Oftentimes she is gone three weeks out of the month. Our older son just got his license, so we have been letting him drive himself places but I’m still driving our 12 year old.
I know I was wrong to have an affair, but I was discreet. The kids don’t know. She only found out because she accidentally took my iPad on her last trip instead of her own and saw text messages. I have been lonely for years and the affair is more about having a friend for company on occasion than anything serious.
If I leave, who will take care of the boys? I asked and she said her mother will come stay in our guest suite whenever she travels. Can she force me out because of what I did?
A. The standard in a situation like this is NOT whoever is at fault for the breakdown of the marriage gets kicked out. This is a no-fault divorce state so even though conduct is relevant to some degree, good conduct also counts. In order to get you ordered out of the house, she would need to show that your continuing to live there is somehow having a negative impact on her and/or the children’s health and welfare. Even if she could prove that to be the case, the judge could only order you out for a finite period of time not to exceed 90 days.
As I understand it, your children don’t know about the affair so your presence is obviously not impacting their health and welfare. She is rarely there so arguing your presence impacts her health and welfare would be a stretch.
If she files a motion for you to vacate, you will need to oppose the motion and spell out all of your good conduct for the judge including everything you do for your children on a daily basis while she is off traveling. You will want to include details such as scheduling and taking the kids to appointments, extra-curricular activities, helping with homework, cooking for them, doing their laundry, taking time off when they are sick, etc.
The difficult reality for most couples, especially those with the means of having a guest suite, is that you will live together under the same roof while the divorce is pending.
Email questions to whickey@brickjones.com
Beware of mediators who defy judges
Q. When I got divorced five years ago, my ex and I mediated our divorce. The mediator wrote an agreement, and we brought it to court for approval. The judge did not approve it because she said some of the terms were not acceptable. We went outside and called the mediator for help. He said we could make the change the judge wanted but because we had agreed otherwise, we should write up and sign a separate paper between us and not tell the judge that we were keeping our old agreement. That is what we did.
One part the judge did not approve was our agreement not to move outside of Winchester until the children graduate high school so that we would never disrupt the equal parenting plan. We had to cross that part of the agreement out to get the judge to approve it. But, we still agreed we would neither move nor change the parenting plan.
My ex got remarried last year and his wife took a new job, so they are moving to Hingham. He is insisting the parenting agreement can’t change because our side agreement said it would not change, but it also says he will stay in Winchester. Can he prevent me from asking for a modification and if so can I hold him in contempt?
A. First and foremost, you cannot expect to uphold a side deal you struck in the hallway on bad advice from a mediator when the judge made clear your agreement was not acceptable.
In your particular case, you cannot agree that a parenting plan will never be modified. Child-related provisions in divorce agreements are always modifiable upon a material change in circumstances. Further, you also cannot condition access to children on a person agreeing to live in a particular place, doing so violates a person’s freedom of movement and ability to live where they choose.
So, to answer your question, your ex is NOT in contempt because he has not violated the agreement approved by the court. Your side deal has no bearing in the law.
At the same time, your ex cannot prevent you from filing a complaint to modify the parenting plan so that the children are not traveling great distances to school from his new home on the other side of Boston in rush hour traffic.
Email questions to whickey@brickjones.com
Ex doesn’t want to share, but law will decide
Q. My husband just announced that he lost his job again, he has no money to pay child support, his trust fund is the only asset he has and he does not have to share it with me, and he has a girlfriend so he wants me to move out of the house so she can move in. He said because we were married in California, community property rules apply so I get nothing.
I can’t begin to unpack all of this. I haven’t worked in 20 years since our oldest was born. She is in college. We have three kids in high school. All four kids have always attended private school paid for by the trust.
My husband’s trust even owns our home and our vacation home. I would move to our vacation home just to get away from him right now, but he says I am not entitled to access that house any longer.
I do not have any cash to my name so I can’t even pay a lawyer for a consultation. Should I just pack it in and move back to Iceland where my parents live and where I know I will be taken in?
A. Do not do anything drastic like moving to Iceland. Do not move out of the house. He cannot force you to do so regardless as to whose name is on the title while the divorce is ongoing.
First thing first, do not panic. He either does not have all the facts/law or he does and is trying to bully you into agreeing to something less than you are entitled to. I assume that you do not have a pre-nup. The location of your marriage does not matter. If you live in Massachusetts, you get a Massachusetts divorce and apply our laws of equitable division of assets.
Depending on the facts of the situation and the language of the trust, in Massachusetts some trusts can be divided. Also, if the trust makes regular distributions to him allowing your family to live a certain lifestyle during the marriage, the court can assume the same distributions will continue into the future and order him to pay child support and alimony on that trust income.
You need to immediately hire a family law attorney well versed in trust law. Most lawyers accept credit card payments. Also, a judge can order a party with access to money to pay the other party’s legal fees to level the playing field. Do not accept his word on anything right now.
Email questions to whickey@brickjones.com