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News from the Firm
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
Pregnant ex leaves & sends support agreement
Q. I live in New Hampshire. My ex was living with me but left when she learned she was pregnant. She moved to Plymouth, Massachusetts, three hours from my house. She had the baby and filed for child support. We both earn about the same income.
She sent me a proposed agreement that says I am the father, sets child support at the guidelines amount with a worksheet to back it up, says I will cover the baby’s health insurance and pay half of all uninsured medical expenses, says I will pay half of the nanny ($1,200 per week), and says I will pay half of college. This does not feel quite right to me – especially because she is saying I can only see the baby when she agrees, and she gets full custody of him. Do you see anything that I should consider challenging?
A. First of all, do you know that you are the father? If she up and moved out of state when she learned she was pregnant – maybe she knew something you didn’t. Request a paternity test before you agree to anything.
Assuming the test deems you to be the father, this will be a long road for you. Massachusetts has high child support guidelines, requires payment beyond the age 18 in many cases, and requires parents to contribute to college – something New Hampshire does not require. So, the move to Massachusetts was likely a strategic one if she did not see a future for your relationship. If you are the father and you want a relationship with your child, you should file an answer and counterclaim and ask the court to establish a parenting schedule so that you have rights to the child. Expect to start out slow and build up over time.
On the child support side, you should run your own guidelines worksheet. Put in what she pays for childcare and the calculator will take care of incorporating the appropriate sharing of that expense. Do not assume you have an obligation beyond what the guidelines shift to you as part of the formula. Also, figure out what it will cost you per month to come to MA for a weekend including gas, hotel, food while here in order to spend time with the child. You can argue that you have this added cost due to her sole decision making in moving and you should get some credit on your child support.
It is not mandatory that you agree to college contributions now.
Email questions to whickey@brickjones.com
Being nice to ex during mediation backfires
Q. My husband and I have been mediating for two years. I agreed to take it slowly because our kids are young and he has a history of severe depression. I’ve recently been feeling like I’m being too nice. I was always the primary parent, but got pushed into going back to work fulltime before I was ready. He moved out of the house on the condition he could have the kids half the time. He said this was doable only if I worked. So, I returned to nursing on a three-twelve schedule.
Recently, he told me his company health insurance changed and mine is better and cheaper so he insisted I provide health insurance for the family.
I have been pushing since September to put this all in writing and finish up the divorce. He keeps cancelling appointments with the mediator. I have been feeling guilty but finally called a lawyer this week. Her office looked at something online and said my husband filed for divorce the day before Thanksgiving asking for sole custody of our kids! Now I’m panicking and my appointment with the lawyer is two weeks out. Am I going to lose my children because I was trying to play nice?
A. Do not panic. You will not lose custody of your children because you went back to work or agreed he could have them for half of the time. If you went to court today, assuming you have not left out any important points like putting your children in danger in some fashion, a judge is going to look at what you have been doing and keep the status quo for the children – in other words, your current arrangement will be reduced to writing and made into a temporary order of the court. Then if your husband does not back off from his quest for full custody, the court can appoint someone to investigate the situation and report back on what arrangements would be in your children’s best interest before a judge makes a final decision. Historical parenting will come into play during that investigation, so your prior role is important.
I recommend you schedule a next mediation session and in that session tell him you know he filed and you know he is asking for custody. He can either fully re-engage in the mediation process now or you will file a counterclaim and you can move the divorce into the court process.
Email questions to whickey@brickjones.com
Ex uses kids’ AirTags as surveillance devices
Q. My children spent the Christmas break with my ex visiting his family in New Jersey. I am beginning to think he spent his entire Christmas bonus on AirTags. Every time the kids walk by me my phone notifies me that there is a new AirTag in my vicinity. I have been finding AirTags sewn into the lining of their new clothes, in the soles of their new sneakers, you name it.
I sent him a message and he denied putting AirTags in any of their things. He claims his mother did all the shopping.
This feels like a huge invasion of privacy. By tagging the kids, either my ex or my former in-laws can track all of my movements. My kids have also told me that their grandparents grilled them about my boyfriend, how much time they spend at his place and details of my life. Can I do anything about this invasion of privacy?
A. Do you think you have found all of the AirTags at this point? If not, I suggest you box up the children’s new things and deliver them to your ex. Send him a message via OurFamilyWizard telling him that he is welcome to return the items to the children once has been through it all and determined that there are no more AirTags in anything. If you find more, you will donate their Christmas gifts to charity. Be clear that you are doing this because of the inappropriate invasion of privacy.
The other thing you can do is object to the children traveling out of state to visit his parents again. Consult your agreement. Presumably he needs to notify you or get your permission to travel with them out of state. If he does not need permission, you can file a complaint to modify the parenting plan so that they don’t go to his parents’ home. While this is extreme, their action is also extreme. Your ex and his family need to understand that the violation of your privacy is not something you will tolerate and using the children as pawns to spy on your whereabouts is even worse.
Most agreements also have non-disparagement provisions. If you have to go to court, you should invoke this provision as well and raise the issue that your children being around his family exposes them to negative opinions and intense inquiry about your personal life. If their behavior is exposed, maybe they learn to be more respectful.
Email questions to whickey@brickjones.com
Conflicting orders can end in same result
Q. I received a notice from the court that I have a pathways conference scheduled in my child support modification case. I also received a notice for the same date and time that I have a pre-trial conference scheduled. I am looking to terminate my child support obligation because my daughter now lives with me full time and has no contact with her mother. She agreed our daughter could live with me but I am stuck still paying child support of $300 per week.
I am trying to follow the rules here and do not understand which notice to follow – they have different requirements. I am worried my ex will not show up because she has not responded to any of my emails or texts. How should I best prepare to get the most accomplished?
A. Some courts schedule both conferences at the same time so that if you reach an agreement in the pathways conference, the court can immediately hear the case and approve the agreement going to judgment that day. Other courts just schedule pathways conferences and then administratively approve the agreement reached.
For your situation, you should prepare a proposed judgment, an updated financial statement and a pathways conference memo. You should also try to get your ex to commit to a settlement meeting a week before the appointed hearing date. E-file your documents ahead of time if you cannot otherwise bring them all to court the day of your hearing. You should mail copies of all of your documents to your ex in advance of the hearing (at least 10 days before if possible).
Then, the day of the hearing, you will meet with an assistant judicial case manager in an effort to reach a settlement which I would imagine includes cutting off your child support obligation retroactively to the date your daughter moved in with you. If your ex does not show up for the pathways conference, because there is also a pretrial conference scheduled, you can ask to see the judge to have an immediate pretrial conference. Explain the facts. Bring copies of the letters you sent providing your ex with all of your documents and asking her to have a settlement discussion. Her decision to blow off the day will likely result in the judge entering a judgment in your favor the day of the hearing.
Email questions to whickey@brickjones.com
Divorced in Nov., yet still filing jointly
Q. My husband and I got divorced in November. Last week he sent me an email reminding me that I agreed to send him my W-2 when I get it. My neighbor is an accountant. I asked her whether I need to send him my W-2 and she said no and explained that we cannot file jointly now that we are divorced. My husband thinks she is wrong. What do you think?
A. I think your accountant friend is not a divorce lawyer and therefore does not have the full picture. When people say they are divorced, unless you work in this field or have recently been through a divorce, most people do not understand the difference between a Judgment of Divorce Nisi and a Judgment of Divorce Absolute. The nisi period is a statutory 90-day mandatory waiting period between the granting of a divorce and the divorce becoming final and absolute.
While you probably feel divorced from an emotional perspective and even a physical separation perspective, technically you are still legally married during the nisi period (you calculate the 90 days immediately following the day you were in court when the judge issues the judgment nisi). During the nisi period you can still file joint income tax returns and you can remain on a health insurance plan which kicks off former spouses.
There are also things you cannot do during the nisi period, the most important of which is that you cannot marry someone else. If you did so, your second marriage would be void because you are not allowed to be married to two people at the same time in Massachusetts.
Tell your friend that your divorce judgment is not yet final and ask her if that makes a difference from her accountant perspective. I am confident her answer will be yes. You should also re-read your divorce agreement. There is typically a provision that addresses how you will file income taxes after the divorce. I suspect if you re-read that provision your memory will be refreshed about filing jointly for 2023. You should also re-read that section so you understand how any taxes owed are to be paid and/or how any refund received will be shared.
Email questions to whickey@brickjones.com
Ex waits too long to retrieve property from house
Q. My divorce was finalized five years ago and I bought out my ex’s interest in our home. He had 30 days to walk through the home to see if there was anything he had left behind when he moved in with his girlfriend the prior year and take whatever he wanted at that point. I repeatedly emailed asking him to come for anything he wanted because I just wanted to get it over with. He never did. About a year later, I inherited a significant amount of money and completely gutted / renovated the house. I donated most of the old furniture to charity.
Last week I got an email from my ex saying that he had ended his relationship, bought a new house, and wanted to come get his belongings because, among other things, he needs furniture for his place. I responded that it was too late. He has now sent an email saying that I am in contempt and will have to buy him new furniture if I will not give him half of what was in the house when we divorced. Does he have some legal ground to stand on here?
A. While I have not read your divorce agreement, I think it is safe to say he is trying to bully you into something here and does not have a leg to stand on. Agreements are typically drafted in such a way that if you fail to do the walk through and retrieve your personal property by the deadline, you forfeit your right to any property. You should re-read the agreement to be sure, but I suspect you will see that you get to retain all of the property in the home, and he is only entitled to items he designates during a walk through within a specified time period.
Feel free to ignore his threats. The one proactive thing you should do is go back through all of your old emails to him encouraging him to come get his belongings so that they are easily accessible to you should you be served with a contempt summons. If he files a complaint for contempt, he will need to show that there is a clear and unequivocal order which you knowingly violated. His problem is that there is a clear and unequivocal order which he knowingly violated and wants to lay that responsibility at your doorstep. It will not work. He also has the small problem of having waited an unreasonable time to make a claim which can bar his stale requests.
Email questions to whickey@brickjones.com