Q: I am representing myself, but my husband has an attorney. His family is giving him all kinds of money to fight me, which I think is unfair, but I cannot get the judge to order him to share the money with me. He says he is borrowing the money, but I know that’s not true. During the marriage I stayed home with the kids and couldn’t save for retirement.

I want more than half of his retirement to make up for the fact that I couldn’t save any money. His lawyer is incredibly rude and won’t even talk about this; she just says this is never going to happen because that’s not how it works.

I also asked for child support going back to the date he walked out. He left in January 2021, but the judge didn’t order child support until September. Again, his lawyer tells me that I don’t have a chance to get the child support back to the date he left. It doesn’t seem right that I don’t get retroactive support when he decided to walk out. I can’t understand why his lawyer won’t even discuss these issues with me. We recently had a pre-trial conference and she just told the judge we need trial dates because the case will never settle. I think I am being very reasonable — how can I get them to settle these issues instead of a trial?

A: You probably can’t get them to settle these issues because you are not actually being reasonable. Frankly, the lawyer isn’t being mean, your positions are outside the norm of what typically happens in such situations and you may have no basis in what you filed for the judge to even grant the relief you are seeking.

Starting with his retirement, generally assets acquired during the marriage are divided equally unless there is a pre-nuptial agreement that dictates otherwise. Retirement assets are often divided using a marital coverture formula because sometimes they exist prior to the marriage and generally continue to be contributed to post-divorce with non-marital money. You can certainly argue for half of his entire retirement accumulated to date because you were unable to contribute to your own but don’t expect to get more than half of his retirement. He doesn’t owe you anything for the joint decision that you would take care of the children and not work. Think of it this way, you didn’t save for retirement, but you also didn’t expend thousands of dollars on day care so you divide the assets you saved.

You cannot get retroactive child support dating back before the service of a complaint for divorce. I do not know who filed or when but the date of service is the earliest point you can seek retroactive support. You can only ask for retroactive support if you make the request in your complaint or counterclaim for divorce. Your husband’s lawyer cannot advise you of this because that would be improperly giving you legal advice.

Email questions to whickey@brickjones.com.

Q: I have been to court three times now trying to have a pre-trial conference. My husband and I don’t have any assets to speak of. He had drug issues and managed to get himself on SSDI several years ago. We get a monthly check for our son. I am realistic that is all I am getting out of our divorce. I am a nanny and make enough to support myself and our son.

At the first pre-trial conference, my husband claimed he had COVID and didn’t show. Of course, I took a day off and spent it in court waiting for him to show — he did not give anyone the courtesy of notice. The judge set it down for another date two months later. Again, he didn’t show and claimed he again had COVID. We just had a third attempt at a hearing and this time he claimed to be in the emergency room.

We now have a fourth date on the calendar for the end of August. I don’t want to have to use another day off and want this over before my son goes back to school. All I am looking for is to keep the SSDI checks for our son and custody. He is 14 and has very limited interaction with his dad — mostly because my husband moved in with his girlfriend a year ago and makes zero effort.

How can I make this move forward? I am afraid he will no show forever.

A: He just might no-show forever. I don’t know which of you filed the divorce case but I hope it was you. There are few benefits to being the first to file but this is one. If you are the plaintiff, or even if you filed a counterclaim for divorce, show up to the next hearing with a proposed judgment of divorce and ask the judge to sign it granting you a divorce and custody with support paid by virtue of the monthly SSDI check for your son. Given the three strikes, this strategy should work.

Only the plaintiff can ask for a judgment to enter even if he does not show up. It is unusual for the judge to give him so many chances so I suspect you are the defendant. If that is the case and you have not yet filed a counterclaim for divorce, you should now file a motion to file your answer and counterclaim late. Ask your husband to assent, and if he does the motion can be allowed administratively with no hearing. If he won’t assent, ask for it to be heard before the August pre-trial date. Once your counterclaim is on record, the judge can grant your request for a divorce regardless of where your husband might be on the date of the next pre-trial conference.

This is probably the one time it matters if you are plaintiff or defendant in a divorce. It is also the one time having no significant assets is helpful.

Email questions to whickey@brickjones.com

Q: During COVID, my husband left his job to take care of his elderly parents. Sadly, they passed six months ago. He decided he is not going back to work and going to live on his $2 million inheritance. He also inherited an annuity that pays out $65,000 per year. I am a teacher with similar income. Before leaving his job, he was making three times what his annuity pays. He has now decided he wants to divorce. He said we need to split our marital estate equally, but he can keep his inheritance because it is not a marital asset.

He also said we will share our teenage kids equally and since we earn the same there will be no child support.

I am in shock. I have no idea how I will survive on my salary and stay in town so our kids who are finishing 10th and 11th grades don’t have to change schools during high school. I’m afraid to even hire a lawyer because I feel like I need to save every penny right now. What do you suggest?

A: His plan is very one-sided and while he might get some of what he wants you to believe will be the outcome, he will not get it all. I suggest you either hire an experienced mediator to help negotiate a fair agreement or hire an experienced family law attorney to help you. If you try to do this alone and let him convince you to do things his way, you really will have to save every penny.

The easy part is your teenagers are at ages where the parenting plan should not be controversial. Unless there is a reason not to have an equal parenting arrangement, that is not something to fight about. However, if one of you is going to stay in town and the other is going to move, your children will probably want to spend more time with the person remaining in town.

Because your husband voluntarily left his job and is capable of earning almost $200,000, a judge can attribute that income to him and set child support using his prior salary. Alternatively, he can go back to work and earn the money. He will have to pay support even if you have equal parenting time.

His inheritance is trickier. Because it did come in at the end of the marriage, you probably won’t get any part of it. However, you should get a larger share of the marital assets on account of his keeping his inheritance. So, it may be that you can keep the equity in the house in exchange for his keeping his inheritance. This would allow you to stay in town at least until your youngest finishes high school.

You can also look to have him pay a larger share of college because of his inheritance. And, to the extent his inheritance produces an income, including his annuity, that income will be considered for support calculations.

Email questions to whickey@brickjones.com.

Q: I just received a letter from our life insurance carrier that my ex-husband’s policy lapsed. When we got divorced a few years ago we each agreed to maintain insurance until our three children finish college. He has to maintain $1 million because he also makes double what I make and pays child support. None of them have finished college and two are still in high school. I asked him to try to get it reinstated and he said he no longer qualifies because his blood pressure is so high. I think his blood pressure is high because he drinks so much.

I prefer not to take him back to court but I am truly concerned about his lifestyle and whether our kids will be able to go to college if something happens to him. What is the best way to ensure our kids are OK if he drinks himself into an early grave before they finish college?

A: If you want to avoid court, you can look into other security if he has sufficient assets. Does he have retirement? A house? Both? Depending on the value of his assets, you can propose he use a different asset as security. Start with retirement because that is the easiest alternative security given the beneficial designation. Ask him to name you as the beneficiary of his retirement until your children graduate in lieu of replacing the life insurance policy. The problem becomes – does he have a million in retirement?

If not, look at the equity in his house as security. A real estate lawyer can draft a mortgage where he grants you an interest in the equity in his house for so long as he has an obligation to maintain security for support. Make sure you record the mortgage so the world has notice of your interest and he cannot deplete the equity by getting another mortgage which trumps your interest. Then, when your youngest graduates, you can discharge the mortgage and free up his equity.

These options would require the two of you to prepare a modification agreement which you will file with the probate and family court to memorialize the change you have made. This would prevent you from filing a complaint for contempt about his lack of life insurance and give you rights of enforcement with regard to his retirement / equity.

If he refuses to agree, you should file a complaint for contempt. He might say he cannot be found in contempt because the life insurance company will not reinstate his policy. The problem is by letting the policy lapse, he violated the court order so he is in contempt. So, he should be ordered to pay your legal fees and ordered to provide alternative security. If the judge orders the mortgage alternative, be sure to ask that he be ordered to pay the real estate lawyer’s fees too.

Email questions to whickey@brickjones.com.

Q: My husband recently retired at the age of 60. He has no 401(k), no pension or other savings to speak of. He will get Social Security, although only minimal since he’s taking early retirement. We’re divorcing, we own a home with no mortgage and the kids are grown and gone. I still work and earn a good salary. After splitting the house, I thought we’d be done but he wants me to pay alimony.

Can I be forced to pay him alimony when it was his choice to retire with nothing put away? He also wants half of my two pensions when I retire in the next 10 years. Do you think this is something we need an attorney for or is arbitration the way to go?

A: While you can certainly opt into binding arbitration, which is essentially like hiring a private judge to hear your case and make a decision, generally people who arbitrate hire lawyers to represent them during the process. Oftentimes people mix up arbitration and mediation. You can certainly try mediation in the first instance, which people often do without attorneys. If you go that route, you need to find a reputable family law attorney who also does mediation given the issues at stake. Mediators are neutral but can tell you generally how things are typically resolved.

I have good news and bad news for you. Starting with the good news, unless you made significantly more than your husband during the marriage, you probably won’t have to pay him alimony. He was capable of continuing to earn a living but chose not to at an age that is well before the normal retirement age as defined by Social Security. He cannot lay his bad decisions at your doorstep. A judge or even an arbitrator can attribute income to him at the level he was earning before retirement. So, for example, if he made $80,000 and you made $100,000, you could be ordered to pay alimony on the difference in your respective incomes provided he can prove a need, until you reach normal retirement age. In this example, he could get up to 27% of $20,000 per year. But, if he is able to live on his $80,000, he would not get alimony. This is something that he could learn in mediation, but would surely be told to him by a family law attorney if he consults one.

The bad news is he is entitled to half of your pensions when you retire. The pensions will be divided now by a Qualified Domestic Relations Order, which will essentially instruct the administrator of your retirement plan to set aside his portion and pay it out to him when you retire. The good news is if you plan to keep working another 10 years, he will not get any portion of what you pay in or accumulate post-divorce. So, find a way to get to yes sooner rather than later — your contribution clock is ticking.

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Divorce can be difficult for a couple, but challenges also arise when children are in the mix. Most municipalities consider the best interests of the child when it comes to mapping out custody agreements or other decisions, but couples can get the ball rolling by considering the children in each and every decision being made. This can ensure the divorce process — however difficult — leads to more positive outcomes.

Willingness to support each other. Adults get divorced for various reasons, notably because they no longer feel comfortable nor willing to stay together in the household. No matter what you feel about a soon-to-be or former spouse, it’s important to be cooperative with one another and work together to support relationships with the children. The more cooperative everyone is, the more supported and happy a child may feel.

Develop a common message. Do not use the divorce as a way to disparage the other person or shift blame, which can make co-parenting harder in the future. Get together to develop a common message on why you’re getting divorced and how you plan to be civil in the future when birthdays, marriages, sports practices and anything else comes up.

Let children have a say. Children who are old enough to have a voice should be invited to do so. A judge may even speak with a child around age 12 or older to find out his or her preferences about custody and visitation, according to Divorce.net. Children may naturally gravitate toward one parent, and when the marriage has ended, he or she may want to live with or spend more time with a particular parent. All considerations should be made to help children feel comfortable, even if it forces parents to make additional concessions.

Consider a child specialist. Children may appreciate the opportunity to speak with a family or child therapist who can lend an unbiased ear. In addition, a professional can review how you plan to interact and speak with the children so that the tone and the messages will be more well-received.

Expect and answer questions. Divorce is fluid, and even after the separation occurs children may still have questions or there will be an adjustment period. Being open, willing to talk and answer questions, and reinforcing that the divorce is not the fault of the child or children is important, indicates Yeatts Law Firm. Divorce is seldom easy, but when children are prioritized, they can walk away from the experience in a much more positive way.

Q. My husband got laid off during the pandemic and still hasn’t gone back to work. Unemployment ended long ago and I’ve been supporting the family on my income, supplementing expenses with credit cards. My lawyer said I can prove my husband has an earning capacity but that I need to hire an expert to convince the judge to attribute income to him. I can’t believe I need to spend money on hiring someone to prove that my husband can work. Why can’t the judge just say he can earn what he did before the pandemic? Do I have any other options?

A. Your lawyer is not wrong if there is a trial on the horizon. The judge needs information on which to base his/her decision. If the only information you have comes from tax returns, for example, showing what your husband used to earn, he might take the stand and make up all kinds of stories about why he cannot go back to work in that capacity and he might convince the judge. Hiring an expert gives the judge information that cannot be gleaned from the testimony of you or your husband. It is independent information that, in many circumstances, is deemed more reliable than testimony of the parties who have a proverbial horse in the race.

There are two kinds of experts for this situation. A vocational expert will report to the judge on all kinds of labor bureau statistics in the field in which your husband previously worked or in any other related fields where he is qualified to work. This expert will generally write up a report and testify at trial at a cost of several thousand dollars. And, while a judge can attribute an income based on this type of information, the problem is this expert will not have found actual potential employers for your husband whom he could submit his resume to and try to become employed by. Often times this leaves a judge skeptical.

The other type of expert is a head hunter in the field in which your husband formerly worked. There are placement firms that specialize in certain industries. Find one that regularly places people in the field where your husband has experience. They will know who is hiring and, based on your husband’s resume, where they could likely get him an interview. If you have someone who can get on the stand and tell the judge they have a certain number of employers who would interview him and testify to a salary range based on his qualifications, that is more tangible information for the judge to get behind. Further, in my experience, this expert will not write a report thus significantly reducing the cost.

Of course, if you do not yet have a trial on the horizon, your best bet is a motion to order him to get a job. You don’t have to pay an expert if he has a job.

Q. My husband and I drifted apart over the years and now that our two kids are in college it makes no sense to stay together. We decided to mediate instead of spending a ton of money on legal fees since we don’t have a ton of assets. We sold our home, divided the proceeds and each rented apartments, although mine is larger because when the kids are home from school, they stay with me.

I stayed home initially to raise our children but once they were in school, I went back to work. Over the years I worked two jobs to make ends meet. My husband always worked as a plumber. I took courses over the years and was able to climb the corporate ladder at my day job. I also picked up additional shifts at night and over the weekends at a restaurant. I saved all I could and have been able to pay for the kids’ college expenses. I continue to work two jobs so I can pay for their college but once they are done, I fully intend to stop waitressing.

I was hoping to receive child support since the kids stay with me when they are not in college, and I have to have the larger apartment. Recently I got a raise in my day job that is enough to allow me to pay for college and quit my second job. But now my ex wants alimony and insists I have to keep two jobs.

The mediator is just letting him change the narrative over and over, and I’m getting frustrated. How can I make some progress, and will I have to keep working two jobs to pay him alimony?

A. Sounds like it’s time for an ultimatum. The best way to prove you never intended to work two jobs long term is to quit the second job now. Since your day job is now bringing in the same as your two jobs combined used to, there is no reason to keep it — sure extra cash is nice but his threat to seek alimony is not.

Second, you do not have a sole obligation to fund college expenses for your kids. Tell him it’s time for him to start contributing at least half the cost of UMass Amherst even if that means he now has to work some overtime.

Finally, the mediation process should not drag on beyond its useful life. If you cannot reach a final agreement soon — like in the next session, end it. You have no obligation to mediate forever. Go into the next session armed with a plan (see my suggestions above). Also consider consulting an attorney beforehand so you have someone in your corner to fall back on if your line drawn in the sand does not result in a fair resolution. Be prepared to file a complaint for divorce quickly if the next session is fruitless — sometimes getting served is the best reality check you can give a person.

Q. My husband has been very controlling and threatening. He followed me around the house, had cameras monitoring my every move, refused to allow me to have my family or friends come over — he insisted he was being careful with COVID. He had been trying to isolate me for a long time. He also became obsessed with true crime novels and collecting knives.

I was terrified by his escalating behavior. I finally had a friend help me escape the house when he was leading a work team Zoom meeting. I hid in a hotel using cash and got an emergency restraining order. At the return hearing, the judge believed him that I was crazy and he would never do anything to hurt me. I remained terrified but ran out of cash and had nowhere to go so I went home.

I filed for divorce. When I was in the hotel, he reported the one credit card that I had access to as stolen and I don’t have access to our bank accounts so I can’t leave again. He has been building a case to show I am crazy and has told me that I will get nothing because he had money before he married me which we used to buy the house. I make more money so he makes me pay all our expenses for the house until we are even. He keeps score. He says I will have to pay alimony and he will get to keep the house because of his deposit. I am so scared but my lawyer told me do not call the police because the judge didn’t believe me so if I do call, the judge will just think I am playing games.

What are my options?

A. First you need to hire a different lawyer. Keep your cell phone charged at all times and carry it with you in your pocket. If you are truly afraid for your safety, lock yourself in the bathroom and call the police. The judge isn’t going to give him all of the assets or make you pay alimony because you sought help from the police.

Second, file a motion to sell the house so you have money for your own place to live. While you are at it, ask the judge for an advance against the marital estate out of other assets so that you can come up with first, last and security deposit for a rental. Open a new bank account and have your income deposited there. If you can afford it, deposit enough to pay half the household expenses into the household account — he can pay the other half of the expenses. If he chooses not to pay the mortgage — his loss — pay your half and it will take a long time for the mortgage company to foreclose and if it gets to that, ask the judge to give you credit for your payments when the equity is eventually divided. Finally, alimony to him sounds unlikely.