News from the Firm

Ex tries a Slick Divorce Maneuver

May 31, 2021 Wendy Hickey

Q. My husband is making our divorce process incredibly difficult. He moved to our ski condo in Maine and filed for divorce there claiming that is where we are domiciled. We are not. We did spend most of the winter in Maine because of COVID when the kids were doing school remotely three days per week. However, we were here every Monday and Tuesday for them to do school in person and came back permanently in April so they could return in person. I filed for divorce here.

He filed a motion to dismiss my divorce complaint and lost. As soon as I knew he lost, I requested a hearing on my motion for support orders and custody. We had a hearing this week and the judge refused to hear the case because I did not properly serve my husband with the papers.

I don’t understand this – I mailed the papers to his lawyer on time and told them about the hearing which I was supposed to do. Now the court won’t reschedule us until September and my husband says he has enrolled the kids in school in Maine. Can you tell me what I did wrong so I don’t do it again? And do my kids have to change schools?

A. Without looking at the docket to be sure my hunch is that when your husband filed the complaint for divorce, his lawyer filed a limited appearance solely for the purpose of contesting jurisdiction. That lawyer’s appearance ended when the motion to dismiss was denied. If you only sent a copy of the motion and the notice of hearing to the lawyer and not to your husband, he did not have proper notice of your motion. Unless he hires a new lawyer or his prior lawyer files a general appearance in the case, you need to serve him directly with the motion and notice of hearing date.

But, just because he pulled a fast one here and you do not get an immediate support and custody order, doesn’t mean he won anything. When you have your hearing in September, you can ask for support retroactive to the date of service of the motion. If the judge is sympathetic, you might get it. But if not, you can still look for a slightly greater asset division in the end because of all of the things you are paying over these months without help from him.

In terms of school, he does not have sole legal custody and you do not agree to change the children’s school. Write a letter to the school where he registered them and state your objections and confirm their enrollment in their current school. Also, clearly notify the current school you do not consent to unenrollment.

Finally, you should take a page out of his book. File a motion to dismiss his action in Maine and use your children’s school attendance records as support to reflect there was never an actual move to Maine.

Keeping estate plan intact after divorce

May 23, 2021 Wendy Hickey

Q. My husband and I are finishing up creating our divorce agreement. Years ago, we worked with an estate planner and did a detailed plan, made wills and trusts for our children’s benefits which I believe come to life through our wills and signed the papers for health care power of attorney. We also each took out life insurance policies and named the other as beneficiaries.

I heard that all of these documents will be invalid once we are divorced. We don’t really want to have to start over. Is it true we can’t use these documents anymore once we are divorced? Our situation is very amicable and we still want to nominate each other as trustee and beneficiary.

If we can’t do this any longer, can we nominate our oldest son? He is 17 and very responsible.

A. You need to think hard about a few things here: (1) As amicable as you are feeling today, down the road when you are each in new relationships – do you really still want your Ex to make your medical decisions if you can’t? (2) Do you really trust a 17 year old to properly invest life insurance proceeds, understand and manage a trust, and care for his younger siblings? If you answer yes to question 2, do you want to take away his ability to go off to college and do things college kids do if you and your soon to be Ex get hit by a bus leaving the court house after your divorce hearing? I am going to assume your answer to both things are no.

Under Massachusetts law, “Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage: (1) revokes any revocable (i) disposition or appointment of property made by a divorced individual to the individual’s former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse…” [See M.G.L.c. 190B, section 2-804(b)]. Thus, if your divorce agreement does not specify that you will each remain beneficiaries of the other’s life insurance policies or serve as trustee of the trust created under the will, presumably to benefit your children, you would have a problem. The quick and easy fix is to include language in your divorce agreement which affirms your respective beneficial interest in life insurance and role as trustee of trusts – at least until your children are emancipated then money and oversight can go to them directly if you like. Do check with your insurance company to see if they require posts-divorce execution of a confirmation of beneficial interest – some do, some don’t.

I do urge you to appoint new healthcare proxies – these are simple forms to update and will avoid awkward situations later on.

Ex Makes Big Bucks Still Gets Alimony

May 16, 2021 Wendy Hickey

Q. I was married for fourteen years and divorced in 2010 when my children were 8, 4 and 3. I currently pay child support and alimony to my Ex-wife. My Ex is a professional who now earns well into the six figures and owns two mortgage free homes. When we divorced she was home with our children which we agreed she would do until they were all in full-time school.

Unfortunately, I signed an agreement with a surviving alimony clause. I know alimony reform happened after our divorce. Is there any way I can revisit what I pay her each month? She is living beyond the lifestyle we had in the marriage and it just doesn’t seem fair that I have to keep paying alimony when she earns so much money. I need to try to save for college but cannot do so as long as I pay alimony.

While it may not be fair, the alternative is worse. The only way to modify a survived alimony agreement is to prove “countervailing equities.” There is no hard-fast definition of countervailing equities, rather there are examples in the case law. Think of it along the lines of if it walks like a duck and quacks like duck – it is indeed a countervailing equity. Bottom line, if something so unexpected were to happen to you that you were at risk of financial ruin, you might be able to get relief from your obligation. The alimony reform act did nothing to undo survived alimony agreements because the assumption was that people understood the pros and cons of entering into such an agreement before doing so and should remain bound to their bargains.

Also, keep in mind, because your alimony obligation is so old, you still get a tax deduction for continuing to pay – something people entering into agreements these days do not get.

This does not mean you have no options here. You can absolutely modify child support. It sounds like she was making little to no income at the time of the divorce and is now making six figures plus receiving alimony. All of that income needs to be included in the child support guidelines calculator to figure out the proper payment. Also, when you complete the child support guidelines worksheet, make sure you deduct from your income the alimony you pay to your Ex before listing your weekly income. Only then will the guidelines spit out the right number.

Also, when you go to modify child support, look for an order on contributions to college. It sounds like she has more than enough in the way of income and assets to contribute at least half if not more to college for your kids. If you have to keep paying her alimony, you might get a judge to order her to pay a higher percentage of college. If she doesn’t like that, you can always ask her to agree to modify alimony so you can pay more for college.

It takes 90 days for divorce to become final

April 18, 2021 Wendy Hickey

Q. I work for a big company and carry our family health insurance. When we reached our divorce agreement, I was required to keep the insurance in place for our kids and my now ex-husband but only for three months for my ex. I understood I had to wait until the divorce was final to notify my employer which I did last month.

I just got served with a complaint for contempt for failing to keep my ex-husband insured until three months after the divorce. I do not understand what happened or why but, from the paperwork, it looks like my employer retroactively terminated my husband’s health insurance back to early last December when we saw the judge. It also looks like my ex underwent every preventative exam and test known to man later on in December, probably because I had met the family deductible at that point in the year and he intended to get a lower level policy for himself this spring when his coverage ended.

He now has thousands of dollars in uninsured medical expenses that he is asking the judge to make me pay. I don’t know why this happened or how I can fix it.

A. It sounds like your employer only has a copy of the Judgment of Divorce Nisi – not the Judgment of Divorce Absolute. Once you appear in front of the judge with your agreement, the judge issues the Judgment Nisi which starts the ninety-day waiting period for your divorce to become final and absolute. Until the expiration of those ninety days, you are still legally married. During that time frame, if you were to marry someone else – it would not be valid. If, as in your case, December 31^st occurs during that time frame, you can still file a joint income tax return with your former spouse. Most importantly for you, for purposes of employer sponsored health insurance plans, you are still married and thus he remains covered.

Most people do not realize the court does not send any additional paperwork in the mail after the ninety-day waiting period expires. The divorce becomes final and absolute merely by the passage of time. You can get a copy of the final judgment by mailing a letter to the court requesting a certified copy of the Judgment of Divorce Absolute. You need to enclose a $20 check and a self-addressed stamped envelope. Within a few weeks, you will receive your copy.

Meanwhile, notify your HR department ASAP of their error and ask them to reinstate your ex’s health insurance back to December. Advise them that you are in the process of obtaining a copy of the final judgment and will provide it upon receipt. Be sure to communicate this in writing. If his insurance is reinstated, bring a copy of that notice to court. If not, bring copies of your communications to HR along with your letter requesting the judgment absolute to prove this was not an intentional violation of the agreement.

Coming Soon! Private Arbitration Court for Family Law and Other Disputes

April 14, 2021 Maureen McBrien

Those who were waiting through the pandemic to get divorced will know the frustration of delayed hearings, elusive dates and no end in sight. For anyone who doesn’t want to see their divorce drag on into 2022, Brick, Jones, McBrien and Hickey LLP is pleased to announce that we are building a private courtroom in our newly leased space at 250 First Avenue in Needham where family law and other legal disputes can be resolved. Consider arbitrating your divorce in a private setting rather than in the state court system to reach conclusion in your family law matter.

So what is divorce arbitration? Arbitration is a binding process that must be agreed on by the parties before commencing the arbitration. The difference between an arbitration and a mediation is that the arbitrator decides the case, rather than a mediator getting the parties to agree, which process is non-binding. Arbitration is an excellent option for those who are unable reach resolution other than through the court system, which is experiencing a significant backlog of cases. The arbitration process is a quicker and more efficient means to an end. The process is also private, enabling divorcing parties to stay out of the public domain with their private affairs. Another benefit is the ability to agree on the arbitrator, who is often a private judge or skilled attorney, rather than being assigned a judge at random.

When Can I Arbitrate my Case?

The courtroom is a beautiful light-filled space with a black walnut judge’s bench, witness box, and two attorney’s tables. Technology will permit its virtual or in-person use. The courtroom will be for rent starting in June. If you wish to replicate the court experience in a private setting to adjudicate your matter, please contact us to reserve your time. Several of our experienced attorneys are also available to act as arbitrators who can adjudicate any aspect of or your entire family law matter in our private state-of-the art courtroom, enabling you to move forward in an efficient private manner.

Surprise from ex: Retirement $ gone

April 4, 2021 Wendy Hickey

Q. My husband and I are in the process of mediation. He told me during our last session that I had to file joint tax returns with him and the mediator agreed it was the best plan because it would cost us more money in taxes separate. But, I am worried. I always thought I knew about our finances – turns out I was very wrong. When we exchanged financial statements, I discovered his retirement is completely gone. I don’t know when he took the money or where it went.

I am a receptionist at a dental office and have very straight forward taxes. My husband used to work at Fidelity and now he runs his own technology consulting business so his taxes are more complicated. We have always filed jointly but now I am worried he is not being straight forward because our second largest asset disappeared.

Should I just file jointly or is there something I can do to protect myself?

You said a number of concerning things. First, you need to find out where his retirement went and not just accept that it is gone. Did he move it to another management firm and just not disclose it? Withdrawals of retirement trigger issuance of 1099’s and tax reporting so any withdrawals should show up on prior years tax returns. Your first step is to review the prior returns to see if they show liquidation over time. If not, you need to address the disappearing act. Tell the mediator you need to know where the retirement went and why it was not reported on the tax returns if withdrawn before you can agree to anything else.

This should cause the mediator to insist your husband produce documentation showing where the retirement went. If it turns out he moved the money and did not disclose it on his financial statement, you need to consider whether he is someone you can continue to mediate with. Mediation only works if you can trust each other.

If it turns out he really did withdraw the money, you need to know what he spent it on. His income probably did not decline in 2020 as a technology consultant because everyone needed technology help setting up work from home options, but its possible. If that is the case, there was a loophole last year allowing someone to withdraw their retirement without penalty. Any withdrawals can be repaid over the next three years.

If you are worried about joint filing liability, ask for a stipulation to hold you harmless from anything he does wrong in terms of tax reporting so that you are only responsible for the taxes on your income. If he agrees, have a lawyer draft the stipulation and, once signed, you can sign a joint return – it probably will cost less overall. If he won’t agree, file separately – you can always agree to amend to a joint filing down the road once you have the information necessary to assess his honesty.

Moroccans can get child support here

March 21, 2021 Wendy Hickey

Q. I moved home to Morocco three years ago with our three children. My husband stayed in Massachusetts. Last year I filed for divorce but the court would not address the issue of child support – only custody and the actual divorce. I was told the only the only thing they could do was open a file and send a request to Massachusetts to do an investigation in to my Ex’s income.

That doesn’t seem quite right to me. I don’t know why Massachusetts would do this or even who a request to investigate would be sent to. My Ex ignored the divorce proceeding and has not supported me or our children since I left. Is there a process to make him cooperate with an investigation initiated in Morocco because I cannot find one on the internet?

There is a better way to do this. Rather than fight with him about whether Morocco has jurisdiction over him for purposes of making financial orders, you should file a complaint for child support in Massachusetts. You can voluntarily submit to jurisdiction in Massachusetts even though you no longer live here. Because your Ex does live here, he cannot avoid the process here. You should also file a Motion for Temporary Child Support asking the judge to set a temporary amount of support. Ask for a hearing on that motion as soon as possible. The good news is the courts are still hearing motions over zoom so you can attend from Morocco.

Once you serve him with a compliant for child support, you will have the right to ask for his paystubs and tax returns so you can determine his income. Once you have that information, you can complete the Massachusetts Child Support Guidelines worksheet which will tell you how much child support he should be paying. You should also serve him with a Demand for a Financial Statement so he has notice of the need to prepare the form before the court hearing. You will also need to complete one because the judge considers both of your incomes in setting the support order.

If you seek child support in Massachusetts rather than Morocco, you will receive Massachusetts guideline child support – not support at the level you may expect to receive in Morocco. I’m going to go out on a limb and say this will make a big difference for you and your children.

Then, when you have your support order established, I recommend you sign up to become a customer of the Department of Revenue for collection purposes. In that way, if he decides to ignore the order and his obligations any further, DOR can enforce it on your behalf. They have powers of persuasion when it comes to enforcement that the rest of us lack.

Seeking equal time with child while college looms

March 13, 2021 Wendy Hickey

Q. My Ex-girlfriend and I have one child who is now sixteen. We have managed to stay out of court since he was only a year old. At that time, we reached an agreement for support and parenting time. I have always wanted equal time but have settled for almost equal to keep the peace. Each week I have 3 days she has 4.

It seems like I never get my share of a full vacation week – she always finds a way to interrupt. And she always owes me money for uninsured medicals and private school which we are supposed to share equally. Plus, I pay all of his hockey expenses which are thousands each year. It just feels unfair at this point. I want more time and I’m tired of chasing her for stupid small amounts of money.

College is around the corner and I have saved enough to cover most if not all the costs. I don’t know if its worth spending my savings to get more time. What are my options?

You have a lot to consider. Given your son’s age, he will have some say in his schedule. I don’t recommend putting him in the middle, but have you asked him if he likes the schedule? The answer to that question is really key to whether you should take any action. If he doesn’t want more time at your house, it is not worth the fight. If he is open to a more equal share of time, you need to do a bit more homework.

Go on the Massachusetts Trial Court website and search for Child Support Guidelines worksheets. Run some calculators using your current income and zero income for her (unless you have some way of truly knowing what she earns). See what your maximum exposure is for child support if the whole thing backfires and she convinces a judge rather than giving you more time you should be giving her more money. If you have been paying the same support for 14 years, you could end up on the hook for paying more – possibly even if you “win” equal time merely because the guidelines have changed, and your income has likely increased.

Child support does not go away when your child goes to college. It can be reduced but if he still goes home to mom for at least part of the time, you still pay support. Depending on how much you have saved and where he wants to go, you could make an offer that you will pay 100% of his college costs in exchange for exactly equal parenting time now and child support ending when he goes to college.

Without knowing her income I cannot say for sure, but if she consults a lawyer on the offer and earns enough that she will at least be on the hook for half the cost of UMASS Amherst which is the current standard, this could be over before it begins.

Basic divorce misses the big picture

March 7, 2021 Wendy Hickey

Q. My Ex and I were divorced four years ago in another state. We represented ourselves and missed some important things. Our judgment merely divorces us because neither of us knew to ask for property division, custody or child support. We had agreed to those things, so we thought we didn’t have to ask the judge.

A year after the divorce, I married my current husband and we moved to Massachusetts. My Ex moved to Colorado. We sold the house and split the proceeds equally when I moved, but it seems he didn’t pay taxes on his share of the gain. He now has some IRS trouble for that and some other things. He claims he owes so much to the IRS that he can’t send me any money for our kids any longer and stopped paying in November.

I need the money to help support our kids – the $500 per month he paid covered all of their activities and braces. The court made it all sound so complicated when I asked how to make him pay. What should I do?

You cannot file a contempt for non-payment of child support that was purely voluntary. You also don’t have a judgment awarding you custody of your children. You should file a complaint for custody with a request that child support be established. Where this was not done during the divorce, it can be done now. Also prepare a motion for temporary orders asking the court to establish child support and a parenting plan. Serve it all on him at the same time to expedite your hearing date.

You will need to prepare a financial statement, as will he, so the judge can set child support. You can ask him to stipulate to a parenting plan ahead of time if your current division of time is working in an effort to limit the issues for the judge. Then, once you have an order, you can ask your Ex to agree to make it permanent. If he agrees, prepare a stipulation for judgment adopting the temporary order.

In the meantime, you should also register your divorce judgment by sending a letter of transmittal to the court registry along with a certified copy of the judgment and one other copy. Be sure to include your names and addresses. This will allow the judge to understand why you are now filing a complaint for custody.

Finally, you may also want to file a complaint in equity to confirm that there will be no further property division or alimony between you and your Ex. If he gets desperate enough with his IRS troubles and sees what you are doing on the child support piece, he could bring an action for property division and/or alimony. If he objects to jurisdiction, you may have to file for the property division / alimony in the state where you were divorced.

This isn’t a case of the court making it sound complicated, it is complicated.

Spouse has wrong idea on child support

February 21, 2021 Wendy Hickey

Q. At the start of the pandemic my husband, an only child, encouraged me leave my job and go back to Ohio with our two kids and care for our elderly parents. I moved in with my sister and her family. She cares for all the kids while I care for both sets of parents – my in-laws have serious medical conditions. Last week my husband announced that he met someone new, has moved her into our house, and wants a divorce. He said he would “allow” us to stay in Ohio and that his lawyer told him he will only have to pay me half the guidelines child support because he will need money to travel to visit and no alimony because I am capable of returning to work.

I now realize his affair has been ongoing and he sent us all to Ohio so we would be out of the way. I should have realized something was wrong when he only came out to visit once and never wanted us to take the “risk” of coming back.

What are my options here? If I stay does he really only have to pay half his child support obligation and no alimony?

If you have any desire to stay near family, you should immediately consult an Ohio lawyer. Right now, Massachusetts no longer has jurisdiction over your children because they have been out of the state for more than six months. I don’t know that your whole divorce can occur in Ohio, but it may be possible if you can say you were in Ohio when your marriage became irretrievably broken.

If you choose to stay in Ohio and you can file for divorce there, you should. It would serve him right to have to play an away game. When dividing assets, figure out what it would have cost him to hire someone to care for his parents for the last year and ask for an additional award of assets in that amount to make you whole for his banishing you to Ohio to care for them – unpaid.

A court can order him to sell the marital home and give you a share of the net sale proceeds so you can prevent he and his new partner from getting too cozy in your home. You can also ask for alimony, at least in Massachusetts, because you left your job at his request to care for his parents so he didn’t have to. Make him explain to his folks why they have to hire a caretaker as you will be returning to paid work.

Generally, the “left behind” parent only gets to reduce their child support on account of visitation costs if you sought removal AND if he is actually traveling to visit. That is clearly not your situation. You should argue against any such reduction because he has proven over the last year that he will not visit, and your move was his idea in the first place.