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.
Consult lawyer now to save headache later
My husband and I have been trying to navigate the divorce process on our own now that we have unlimited free time. We are trying to limit the use of our attorneys because neither of us is working right now. We have been able to agree to most things but are stuck on one piece.
I filed for divorce on Aug. 1, 2019. After I served the divorce papers, one of my business partners inherited the building that we run our hair salon out of. She put the building into trust and recently named me as one of three beneficiaries along with our other two partners so we could keep the business going if she gets this virus and dies.
I made the mistake of telling my husband and now he insists that because our divorce isn’t final, my potential future share of the building is a marital asset and it needs to be valued and he should get half. I read the property division law and it looks like the length of marriage is defined from the date of marriage until the date of service on a complaint for divorce.
Am I reading this wrong? Or do I really have to buy him out of half my share?
You are not reading the statute wrong but you are applying the definition to the wrong section. It becomes confusing because the same statute deals with property division and alimony. The definition you are reading applies only to the length of marriage as it relates to alimony for purposes of durational limit calculation. For property division purposes, the length of the marriage is from the date of marriage until the date of divorce. But, just because you are misapplying the definition, does not mean you have to give him half.
I understand your desire to keep legal fees to a minimum given the uncertainty of this pandemic but you need to have your lawyer read the trust instrument. I suspect on reading the trust, your lawyer will determine that you have no present interest in the trust property — in other words, your interest only “vests” if your partner dies, meaning your husband gets zero.
If you are truly against involving your lawyer, look at the trust to see whether the title says “Irrevocable” or “Revocable” trust. Sometimes the title itself gives you an answer. If the trust is revocable, that means your partner can change the beneficiaries and you have no vested interested right now so your “interest” is worthless. If the title does not say, read through the document and see if you can find a place where it uses the terms revocable or irrevocable.
If the trust is irrevocable, you really need to have your lawyer read it because it is still possible you have no quantifiable present interest. Don’t let your desire to settle quickly in your “spare time” without lawyers cost you more in the long run.
Negotiating court hearings by phone
I am writing this for my husband, who does not speak English. His ex-wife took him to court because she stopped working and wants more child support. He filed a counterclaim because she never lets his daughter come spend time with us and never returns his phone calls.
There was a pretrial conference scheduled in December but his ex-wife’s lawyer needed a continuance that day. He went to court but she faxed in a motion to continue and the hearing was moved to next week.
We thought because the courts are only hearing emergencies that his hearing would be moved to when the court opens for normal business. He just got an email from the court saying his hearing is going to be by phone and he needs to submit his financial statement and memorandum electronically to the clerk three days before the hearing.
We do not have a printer or a scanner so even if I write these things for him I don’t know how we can get them to the court. Also, because he does not speak English, he always has an interpreter in court. How can they make him do a phone conference? He is afraid to do this by phone because it will be too confusing. Can I speak for him? If not, how can I help him?
It is up to the judges as to whether they continue cases or hold pretrial conferences by phone right now. Many judges are continuing pretrial conferences but, I am guessing because this case already was continued for five months, the judge felt it should not be further delayed. I am also guessing that the judge, in scheduling the hearing, did not remember there was a need for an interpreter. You are correct — the logistics of having an interpreter participate in a telephone pretrial conference make an already challenging situation far worse.
You will not be allowed to speak for your husband unless you are a lawyer, which I assume you are not. The best way to help him is to type an email for him back to the clerk who sent him the hearing notice. Inform her that he does not speak English and requires an interpreter. Ask if the judge is hearing cases requiring interpreters by phone. If she says no, she should also continue the hearing without the need for you to do anything else.
However, if the judge is still hearing pretrial conferences telephonically using interpreters, you still have the problem of not being able to get his financial statement done and uploaded properly. In that event, you should write a motion to continue, explaining why he cannot comply with the order and ask for a new date in person with an interpreter present. You are allowed to e-sign pleadings now so you don’t actually have to print out and have him sign the motion, he can insert his electronic signature and email it to the clerk who sent him the notice.
Protect yourself from spouse’s schemes
This quarantine just got so much harder. Last week, my wife told me she wanted a divorce. I wasn’t really shocked — she had two affairs in the last seven years. But, the last time was three years ago and I really did think it was over. We have been taking turns working from home and managing our son’s on-line schooling. Today was her turn to manage school.
I came up from the basement for lunch a bit earlier than usual to find my wife on her iPad doing FaceTime with our next-door neighbor while sitting next to our son who was completing his math work. I heard enough to realize (a) this is her latest affair; (b) she was openly making future plans with him with our first-grader sitting right there fully aware; and (c) her future plans include my being out of the house and our neighbor moving in to make his future parenting arrangement with his daughters that much easier.
After listening very quietly, I backed down the stairs. I came back up pretending to finish up a loud phone conversation on my way up so she would hear me coming. She quickly hurried out of the room and asked me to make lunch for our son. Now I can’t stop worrying about the details of her plan is to get me “out of the house.” What do I need to know for the next few weeks of this?
First you should assume if she really wants you out, she might make things up. Carry your charged cellphone on you at all times. If she starts an argument, don’t engage and back away. Keep your hands at your sides and retreat to the bathroom where you can lock yourself in. If she bangs on the door, stay put.
If you are concerned for your safety or that of your son, call the police and report what is going on. You need to be incredibly careful not to get into a situation where she is calling the police claiming to be afraid of you. Now is not the time to be on the wrong end of a vacate order because finding a place to stay could be quite tricky and a temporary parenting plan is unlikely to be seen as an emergency, especially if there is a restraining order in place.
Do your best to keep the peace but do your homework. Go on the court website and begin filling out the financial statement form and gathering the documents needed for self-disclosure.
Where she brought up the divorce at the outset, ask if she is open to trying mediation. Many mediators are offering video conference sessions and this could be a good time to start. With any luck, by the end of the quarantine you could have an agreement and be able to separate homes, making a smooth transition for your son, which may not include her fantasy of playing house with the neighbor.
Protecting kids from drug-abusing ex
My wife and I are in the process of divorcing. She has supervised parenting time at a visitation center because of her habitual drug use and her exposing our children to her abusive boyfriend. The visitation center is closed so she has not had her weekly visit since this pandemic really got under way. I have offered to let her FaceTime with the girls but she has zero interest and has blown them off each time we set something up.
I understand that the court-monitored drug testing has temporarily stopped so I’m sure she is using again.
I am a physician assistant working in a hospital. I am incredibly concerned about my girls. My mom is here taking care of them while I am at work and I am taking every precaution I can including wearing gloves and a mask in the house when I am home. I can’t convey how worried I am for the girls should something happen to me. Their mother is not safe and cannot get custody.
Is there anything I can do to protect them without putting myself in contempt of the financial restraining order? She is the beneficiary of my retirement but is only the trustee of my life insurance trust — the girls are the beneficiaries and her name is not on the deed to the house.
First, I want to thank you for your hard work during this time — those of us not on the front lines are very appreciative of you who are.
As for protecting your daughters, you need to hire an estate planning attorney ASAP. While you can’t change the beneficiary of your retirement account, you can do other estate planning to minimize what she might receive. I am not an estate planner but, as I understand it, she would still be entitled to a statutory spousal share of the assets in your estate if you are still married at the time of your death. But you can put your assets into a trust naming yourself as trustee and naming another trusted adult as successor trustee with the children as ultimate beneficiaries. This would limit what she gets and reserve most of your assets for the kids.
You also need to appoint a guardian for your daughters. Typically, when one parent dies, the other automatically gets custody. Given the situation you have described, you need to protect your daughters, so also name a successor guardian just in case. Your wife might fight your chosen guardians for custody of the girls so whoever you nominate should understand they may be in for a fight.
You should change the trustee of your life insurance trust too. And, include specific terms written your trusts to allow the trustee to pay the legal fees for your chosen guardian in the event your wife challenges custody — that way you ensure the children have a fighting chance to be protected if mom continues to use and to avoid the foster care system.
Custody issues in a time of coronavirus
Q. My ex and I share custody of our three kids equally. Because he is an ER nurse and is now working more than usual, we agreed the kids would just stay with me until this is all over. The only problem with that is the finances. I am a consultant and can generally work from pretty much anywhere. But, now I am trying to work from home while “home schooling” three elementary school-age kids, one of whom has an IEP. In the last two weeks, I have gone from billing on average eight hours per day to an average of 2.5.
Because our incomes are almost equal, there is no child support order. I asked my ex to pay me some voluntary support during this time frame until I can resume working. He declined saying he is risking his life every day and thus doing his part while I get to stay home and play with the kids. Clearly, he is stressed but he is putting an unfair burden on me. I have enough of a nest egg to pay my mortgage for a few months and buy food. But it seems unfair that I should have to solely bear the financial burden here.
I understand the court is closed except for emergencies, which this really isn’t, but do I have any options?
Prepare a complaint for modification stating with the change in circumstances being you are now the sole custodial parent during this pandemic. If you have an email or text confirming this agreement, attach it as an exhibit. Also state that your income has dropped significantly while your ex is working longer hours and therefore likely earning more. Ask for child support to be ordered retroactive to the date of your complaint for modification through the duration of this temporary changed circumstances.
Realize we are in somewhat unchartered waters here. Normally, you would be issued a summons and you could request the increase retroactive to the date the summons is served. Because you will not get a summons from the court right away and by the time you get to court for a hearing, your regular parenting plan may have resumed — you need to get creative in your retroactive request. Mail a copy of the complaint to your ex when you send it to the court. Include a letter asking that he re-consider his position because you really are not interested in a fight, but you cannot be the sole parent to kids who have no school, teach them, and work full time so your income has dropped precipitously while your bills have gone up because the kids are there all the time.
When the courts re-open, you will need to get a hearing date for a motion to establish support. If your ex hasn’t stepped up to make voluntary payments by that point, mail him a copy of your motion giving him notice of the hearing and hope for a sympathetic judge.
Deciding what’s fair in alimony payout
Because my wife and I are both working remotely with a lighter than usual workload, it seems like a good time to finish discussing our divorce and write an agreement. We are stuck on an issue.
We have a fairly large investment portfolio. So far it has lost some but remained relatively stable due to heavy bond investments. Anyway, we are trying to figure out budgets and what alimony should be paid. There will not be child support because our kids are grown. I do make significantly more than she does but she doesn’t spend much and plans to buy a small condo in cash when I buy her out of the house, which will mean she can really make do on her salary because she won’t even have a mortgage.
She is telling me that I can’t count the income generated from the bonds she will get toward her overall income when we figure out the alimony I will pay. That doesn’t seem fair to me — it will still be income.
I do want to be reasonable and get this done. Who is right here?
Let’s take a closer look at what you just told me. You make significantly more than your wife; your kids are grown, meaning this is probably a long-term marriage; she is planning to reduce her lifestyle post-divorce to better make ends meet; and you want to include investment income in her annual income but you neglect to say you will do the same for your income, thus increasing your ability to pay.
Alimony is based on the need of one party and the ability of the other party to pay and will not usually exceed 30%-35% of the difference in your incomes. Now that alimony is no longer a taxable event, most people are agreeing to a tax-free percentage of 22%-28%. So the question is, using a mid-way point of 25% of the difference in your earned incomes alone, what does that look like?
Your wife has no obligation to reduce her lifestyle post-divorce. The case law says if the marital lifestyle can be maintained it should be and if not, you should share the burden of sacrifice. Just because she plans to lower her housing costs, that does not mean you get to pay less alimony. Also realize where you earn more, you will be saving more toward retirement than she is able to, meaning she has to budget for higher retirement savings going forward.
The case law also specifically says the income received from income generating assets divided in connection with divorce does not need to be counted in determining an alimony award. This is especially true if such income was historically reinvested.
So, if you really want to get this done, figure out an alimony amount you can live with paying that is fair to your wife without counting investment income.
Coronavirus fears disrupt parenting plan
My ex and I share 50/50 parenting of our two kids. His new wife, Kathy, travels extensively for work and just returned from a two-week trip in Italy. Our son has severe asthma and has had pneumonia several times.
When she returned from Italy, Kathy’s company made everyone on the trip commit to work from home for the rest of the month to self-quarantine. My kids were with me the day she returned and I refused to let them go back to my ex for his parenting time the next day. I tried to be nice but firm. I have offered him make-up time once Kathy is medically cleared. I even offered him extra summer vacation time.
He said I cannot control him or his parenting decisions and filed a complaint for contempt against me after two days of missed time. I think he thought I would give the kids back as soon as I was served. I didn’t. The hearing is next month.
What should I expect?
While I am not sure it is reasonable to withhold the kids from your ex for a full month, I am also not a medical expert. You should discuss the issue with your children’s pediatrician and ask for advice on when it is safe for them to return to dad’s home.
As for the contempt, in order for someone to be found guilty of contempt there needs to be a clear and unequivocal order that you knowingly violated. Given that you have a clear agreement that you ordinarily abide by and that you knowingly violated it, you are technically in contempt of the order.
However, there is a common-sense element to this situation. Given the nature of the illness and the general reaction to exposure, do not second-guess your decision for fear of getting in trouble. You will not go to jail for refusing to turn the kids over to their dad for his parenting time. The judge will likely enter an order giving him make-up time, something you have already offered.
So, to prepare for the hearing, you should get a copy of your son’s medical records showing his history of asthma and pneumonia. You should also print out all of the email and/or text exchanges with your ex in which you offered him make-up time and explained your decision.
And, you should ask the pediatrician for a written opinion about whether your children, your son in particular, should be kept away from Kathy until she is medically cleared.
Prove residency to file for Mass. divorce
My husband and I got married right after college and rented a townhouse in Washington, D.C. The first two years were great but then eight years ago my husband took a consulting job that had him bouncing around Europe and never home. I took a job with the government and have been stationed in U.S. embassies, first in Canada and for the last six months in Sweden.
It made no sense to continue paying rent in D.C., so seven years ago we moved our belongings to my parents’ carriage house on their property in Massachusetts, where I grew up. We have been coming to Massachusetts for several weeks over major holidays and for a summer vacation but otherwise never see each other.
My husband is very religious and does not want a divorce. The marriage no longer makes sense to me and I want out. I filed for divorce in Massachusetts and he filed a motion to dismiss saying I need to actually live in Massachusetts for a year before I can file. Is that true? Do I have to stay married to him because we both move around a lot for work?
It sounds like your husband is using the jurisdictional argument to protect his religious values. Generally, there is a one-year residency requirement in Massachusetts, and most other states for that matter, before you can file for divorce. Alternatively, if the breakdown of the marriage happened in Massachusetts and you have not lived here for a full year, you can still get divorced here.
Where the breakdown of your marriage likely happened over time and over great distances, you need to look at the definitions of residency in preparation for the hearing on his motion to dismiss. First, ask the judge for an evidentiary hearing so you have an opportunity to testify to facts that will support your claim of Massachusetts residency. In case the judge denies your request, you should prepare and bring to court a detailed affidavit and tell the judge that if allowed to testify, the content of the affidavit is what you would say.
The facts to be considered in a residency determination are, among other things, what state issued your driver’s license? What is the address listed on your passport? Where are you registered to vote? And, assuming you are registered, when you last voted even if by absentee while working out of the country? What address do you use in filing your tax returns? What do you use for a mailing address? Are you a member of a church and if so where? Where do you maintain a bank account? To the extent Massachusetts is the answer to any of these questions be sure to include it in your affidavit. Attach copies of your license, passport, etc. to your affidavit as proof and his motion should be denied.
Ways to get ex to disclose money
I think my husband is hiding money. My lawyer said we had to exchange three years worth of statements when the divorce got started. My husband is not producing any of his bank accounts or his credit card statements. I know for a fact he has two individual bank accounts and an American Express card in his own name. I also know he has a retirement account at Fidelity. When he moved out, he changed his mailing address but I used to see all the statements come in the mail so I know they exist.
His lawyer keeps making all kinds of excuses for him. I’m getting frustrated because I sent my documents on time two months ago. I am tired of paying my lawyer to chase his documents. My lawyer says it will cost me much more to go to court and ask the judge to order him to produce the documents. This just doesn’t seem right — how can he get away with making my legal fees higher?
There are options your lawyer can and should employ. First, the cheaper option is for your lawyer to issue subpoenas to the banks, Fidelity and American Express demanding they produce all documents for all accounts in your husband’s name for whatever time period you may want (you can ask for just the three years covered by self-disclosure or you can go back further if necessary). The cost of drafting and issuing subpoenas is significantly less than a court appearance. Later on, after the documents are produced, your lawyer can ask your husband to reimburse the costs of preparing the subpoenas and the service fees as well as any fees charged by the banks to research and copy the documents being produced.
The other option is for your lawyer to have a discovery conference with opposing counsel and give your husband one last deadline by which to produce the requested documents. This would not include credit cards because they are not part of the initial self-disclosure requirements. If your husband misses the deadline again, your lawyer can file a motion to compel the documents and ask that a discovery master be appointed. Your lawyer can also make a motion for legal fees so you are reimbursed for the costs of preparing the motion and going to court. Even if the judge doesn’t order your husband to pay your fees right now, you can ask again at the time of trial or settlement as part of a final resolution.
As for the discovery master, that would be an independent lawyer who would handle future discovery disputes without the cost of a court appearance. Generally, a discovery master’s fees are shared by the parties in the first instance, but the master has the power to re-apportion his/her fees depending on the conduct of the parties. So, if your husband continues to obfuscate, he will ultimately pay the price for his conduct.
