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 through March 27, 2020. 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 date after April 7, 2020. 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.
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.
Ex’s new wife spotlights kids on social media
My ex’s new wife is obsessed with social media. She posts all day every day on all sites — Facebook, Instagram, Twitter and everything is public.
I am very concerned. First, she is very outspoken about her politics and actively engages people in controversial discussions in very public forums. Second, she posts daily pictures of my children when they are with her. This was not an issue before they married but starting with the wedding ceremony my kids are plastered all over social media.
I’ve had some serious arguments with my ex over my desire for their privacy. He has always been someone to avoid confrontation and thinks I’m overreacting. So I approached her and asked if she would either make her accounts private or stop posting my children on her sites. Shockingly, her response was now that she married my ex they are her children half the time and she has every right to make these decisions.
This is a very serious issue to me — my teenage niece was involved in a very dangerous social media stalking situation last year. Our children are 11 and 13, and I am trying hard to teach them about responsible use of social media and privacy. She is undermining everything. What are my options?
This is likely the opposite of what you want to hear, but the best way to get their attention is to file a complaint for modification seeking a change in the custody arrangement on the basis that if he, through his wife, insists on placing children in a very public forum, he ought to have less time with them. Before filing, take a bunch of screen shots of the public posts you find most troubling so if she suddenly goes private you have proof of what was public. Once you serve the complaint, file a motion for temporary orders asking the court to order that neither party post or knowingly permit anyone else to post photos of or references to your children on public social media sites. Attach the screen shots to the motion as exhibits so the judge understands the reason for your concern.
You cannot ask for orders directly related to her as she is not a party to the case. But, if the order issues against your ex, he will have to police her because he is well aware of what she is doing. If you make the request mutual so it applies to both you and him, it is more likely either your ex will stipulate to the request or the judge will issue an order.
Once you have an order in place, if she behaves, try negotiating a permanent agreement to keep this privacy in place so if she reverts after the case is over, you can file a complaint for contempt. Beware of the potential for backfire if she digs in her heels — a long fight over free speech could ensue.
Appeals Court holds that marital lifestyle is not a factor in determining whether alimony should continue beyond the durational limit.
In a case argued by Maureen McBrien, the Appeals Court upheld a lower court judgment in her client’s favor and ruled that marital lifestyle is not a factor that should be considered when assessing whether deviation beyond an alimony durational limit is warranted in the interests of justice. Instead, the Court should consider the factors set forth in G.L. c. 208, § 53(e) and analyze the situation in the “here and now” rather than in the context of the marital lifestyle as it existed at the time of the divorce. The Court found that “although the recipient’s inability to provide for her own support is a factor to be considered in deviating from the durational limits . . ., the inability to be self-supporting is not the same as the recipient’s inability to maintain the marital lifestyle.”
See full decision here.
When grandma takes on parenting duties
My daughter has had a drug problem for a while. She and her two children moved in with me last year while she did her best to stay clean. Recently her ex took her back to court and got full custody and the kids had to move to a new school system two towns over.
My daughter now only has three hours of supervised visitation each week. They made me the supervisor, which is fine. I asked the father if he would allow the children to spend more time with me. After all, they lived with me for a year during her parenting time and I miss them terribly. I know they miss me too. He said no.
Do I have any recourse?
You can file a complaint to establish grandparent visitation. These are not easy to win over a parent’s objection, however. There is a presumption that the parent’s decision about grandparent visitation will stand. But, a grandparent can rebut the presumption by showing that “failure to grant visitation will cause significant harm by adversely affecting the child’s health, safety or welfare.” If you want to read more about it, google the Massachusetts case Blixt v. Blixt.
If you file for grandparent visitation, your complaint will need to be signed under the pains and penalties of perjury and you will need to list out all of the things you have historically done with your grandchildren before and during the time they lived with you. Include as many details as possible to avoid losing a motion to dismiss. Celebrating holidays, spending vacations, taking them out for dinners and lunches, and taking them to lessons has historically not been enough to overcome the presumption that the parent’s decision should stand.
Assuming you did more — especially when the kids lived with you, your verified petition should include the following details. Start with how much parenting time your daughter had. If it was at least half, then detail what you did during your daughter’s time for the kids. How much time was your daughter in charge versus you? Was she off attending NA meetings and seeking treatment? Did she work? If yes, did you work or were you home with the grandkids? Did you schedule and/or take them to medical and dental appointments? Attend parent teacher conferences? Get them to and from school and after-school activities? Help them with homework? Cook meals for them? Pack their school lunches/snacks? Care for them if they were home sick? Did you buy their clothes and wash their laundry? In other words, were you acting as a stand-in parent?
If you did many of these things, you can argue that rather than acting as a grandparent, you were a de facto parent for the children and they will be harmed by now only spending three hours a week with you at a time their world has already been upended.
APPELLATE DECISION – JUDGMENT REVERSED AND REMANDED BECAUSE JUDGE FAILED TO INDEPENDENTLY EVALUATE AND CONSIDER WIFE’S EVIDENCE AT TRIAL
Maureen McBrien filed an appeal on behalf of the Mother claiming the trial judge abused his discretion in awarding equal parenting time to both parents, awarding joint legal custody over educational decisions to Father and ordering the children be moved to another school district where they had never before attended school, without independently evaluating the evidence. The Judge adopted, almost verbatim, Father’s proposed Findings which did not address Mother’s evidence, much of which was uncontested by Father. The Appeals Court vacated and remanded the matter for further proceedings the portions of the Divorce Judgment as it relates to the parenting schedule, joint legal custody over educational matters and placement of the children in another school district. (see full decision here)
Tax deduction applies despite separation
I moved to Canada three years ago to do some post-retirement consulting. My wife and I tried the long-distance thing for a while but it didn’t work. Last October we divorced in Canada, where it was easier to divide her Canadian assets. Even though I’m the one living in Canada, she is the one who is Canadian.
She sold our home in Lincoln in December and we equally divided the proceeds. I am worried about taxes and how to declare the sale proceeds. She just told me I have to pay all of the taxes because she won’t file a joint return and she lived in the house — not me — when it was sold. I thought we would file together because we were still married in 2019. I have to file a U.S. return because of my U.S. pension. If she is right, that means we had a very unequal divorce settlement, which is not what I intended to do.
I don’t know if I can re-open my divorce in Canada to address this inequity or if I can do something in Massachusetts to fix this.
First, don’t panic — you do not need to undo your divorce agreement in order to make it fair.
What led you to believe that you could file a joint return this year? If a lawyer or accountant gave you that advice, you should give them a call and ask why. I cannot speak for Canada, but in Massachusetts, just because you got divorced in October does not mean your divorce would be final. Once the judge approves the divorce, you remain legally married here for another 90 days. In that event, you could still file a joint return. You need to find out if the province in Canada where you got divorced has the same waiting period. If so, have another discussion with your ex-wife about jointly filing taxes — she may not realize the option is on the table.
Assuming you cannot file jointly, you still will not have to pay any more in capital gain taxes from the sale of the house than she will. When an individual sells their primary residence they are entitled to a $250,000 deduction against any capital gains. That amount is doubled for a married couple. However, when a married couple separates and one party continues to live in the house for two of the last five years preceding the sale, the party who does not live in the home can still qualify to use half of the married couple deduction (i.e. $250,000 per individual). Because your ex lived in the home before the sale, you get the deduction too.
So, call your Canadian counsel to figure out if you were still married on Dec. 31, 2019, and then call your accountant and work through the filing/deduction details
Keeping house important for children’s needs
My husband has decided after 17 years of marriage that he is done. During most of the marriage, I made more money than him, but we have 8-year-old twins who, upon starting kindergarten, began to struggle both socially and academically. I gave up my side consulting and arranged to be home when they get off the bus so I can take them to therapy and tutoring appointments. For the last three years, he has made three times my income.
I’ve been trying to figure out how to keep them in the school system where their IEP is. My sister is single and our house is big enough for her. She is willing to sell her condo and “buy in” to our home. With her money, I can buy my husband out and keep the house.
When we first started dating, my husband was getting his masters and then Ph.D. I was working. He moved in with me and I paid our living expenses so he didn’t have to work or take out loans. I heard I can ask for alimony until he retires even though we were not married for a full 20 years. Is that true?
Also, can I make him let me keep the house? He thinks he can make me sell it to lower my need for alimony.
I am guessing it is not so much the house but the town he is looking to squeeze you out of. Given your children’s needs and their IEP plans, you have a good argument to stay in your town. If he does not agree, force his hand and ask the judge to order the house conveyed to you in the divorce in exchange for your buying him out of his half of the equity. Your sister’s offer is a creative way to keep your expenses stable and still get him the cash for his half. If you have to go before a judge, your argument would be that remaining in the home is in your children’s best interests in light of their IEP’s and social needs. Further, you and your children are entitled to continue to live in the same manner you became accustomed to during the marriage to the largest extent possible.
This means he has an obligation to pay child support as well as alimony in the amount that meets your established needs or the maximum percentage permitted by statute (assuming he has the ability to pay that number), whichever is less.
As for the durational limit on your alimony, gather all of the documentation possible to show you were financially supporting him early in the relationship and argue that you lived together in a financial partnership for more than 20 years. The judge can tack on the pre-marital years when determining how long you will receive alimony.
Transferring retirement assets takes a little time
My wife and I got divorced three months ago. I was supposed to transfer half of my retirement assets to her within 30 days. I did try but was unsuccessful. I called Fidelity and asked them to give her half of my IRA. They told me to send a letter, which I did, but they still didn’t move the money. Also I asked my HR director to figure out how to move half of my 401(k) to my ex and that hasn’t been done either.
She threatened to file a contempt if I don’t move the money by the end of next week. I’m trying to move the money but no one seems to be listening to my requests. How can I make them pay attention so I don’t get into trouble?
If you had a lawyer, they would be helping you navigate these post-divorce loose ends that many people struggle with. Retirement assets take longer than 30 days to divide. But, you can set things in motion in that time frame, which I suspect is what the judge who approved your agreement thought you planned to do. And, if you do set things in motion, even if the transfer is not complete, you are not in contempt.
So, here is how you fix the issue. The Fidelity transfer is easy. You send them a letter directing them to make a tax-free roll over of half of the assets in your IRA “in kind” (meaning half of all investments without selling stocks) into a designated rollover IRA in your ex’s name. The catch here is (a) she needs to open a rollover IRA account into which the assets can be transferred and tell you the account number, and (b) she needs to send a letter to Fidelity authorizing receipt of the assets into her account. You are not in contempt if she doesn’t do her part.
The 401(k) requires professional help. In order to divide certain types of retirement assets including a 401(k), you need someone to draft a Qualified Domestic Relations Order that, when signed by the judge, will be sent to the plan administrator directing them to separate out half of the account as of the date of divorce for your ex-wife’s benefit. There are professionals who specialize in preparing these documents. Any experienced family lawyer can refer you to one. Once the QDRO is drafted, the drafter sends it off to the plan administrator for pre-approval. When it comes back, both parties will need to sign the QDRO and then it gets submitted to the judge who handled your divorce.
When you receive the signed QDRO back from the judge, you mail it to the plan administrator and usually several months later, you will receive notice that the transfer is complete.
