Q. My Wife and I are both US citizens. When we first got married, we lived in Massachusetts. We still own our home but have been renting it out for the last 7 years. Most of our bank accounts and retirement assets are still in Massachusetts. I got a job transfer to Denmark 7 years ago and we have been living here ever since. Our third child was born in Denmark 5 years ago.

My wife recently asked for a divorce. I am concerned about what happens to our Massachusetts assets if we file in Denmark. Do we have to get divorced in both places? Should we file in Massachusetts? We don’t own anything in Denmark and just have small operational bank accounts.

Neither one of us wants to return to Massachusetts now but I would if I had to.

A. Even if you were to return to Massachusetts tomorrow, you would have to wait a year to file for divorce. Because you have been in Denmark for so long, jurisdiction is in Denmark. Frankly on the facts as you state them you cannot even argue that the marriage became broken in Massachusetts thus waiving the one year waiting requirement. Surely your marriage was not broken before you left seven years ago if you have a 5 year old. And, you cannot get on a plane, land in Massachusetts and declare your marriage to be broken since your wife has already asked for a divorce.

But, that really is not bad news for you. If you and your wife proceed with a divorce in Denmark, so long as both of you participate in the process, the court there can enter a judgment which divides your Massachusetts based property. You need to consult counsel in Denmark to determine how things would be divided. In Massachusetts, without a pre-nuptial agreement, in a mid-to long-term marriage where three children were born, you can expect assets will be divided approximately equally. There are some exceptions for example if some assets were inherited, a judge might split them unequally.

If you get a judgment in Denmark and your wife does not want to abide by it, you can file papers to register and enforce your order in Massachusetts. So, for example, if the court orders your real estate sold and she refuses to cooperate, the court here can order her to sign papers or appoint a special master for the purpose of selling the property and distributing the funds in accordance with the Danish judgment. Of course your wife is entitled to similar enforcement measures against you.

Now that you know you can proceed in Denmark, try to reach an agreement on all issues there to remain on good terms with your soon-to-be-ex-wife. In that way the two of you can save for your own children’s college educations rather than contributing to the future tuition costs for your lawyers’ children.

Q. I have been divorced for twenty five years. I moved to North Carolina when our children were 1 and 3. Admittedly I do not have the best relationship with them because I had limited opportunity to see them. My Ex has not helped the relationship and has bad mouthed me regularly over the years. I got remarried two years ago and both of my kids refused to come to my wedding.

Both of my older children are emancipated – working full time jobs and my son is even married. I no longer pay child support for either child. I assumed I was done financially supporting them.

I changed jobs in September and only insured myself and my current wife. While my daughter is 25 for another 7 months and still technically eligible for coverage on my plan until she is 26, I didn’t think I had an obligation to cover her, nor did it even cross my mind that she was still on my old plan. I got a nasty letter from my Ex threatening to sue me for uninsured medical expenses my daughter has incurred for various physical therapy appointments and depression medication which is now not being covered.

Can my Ex really sue me for this?

A. Typically the language in a separation agreement requires coverage for the children until the time of their emancipation. I do not know if your divorce ended in an agreement or a trial but it would be unusual for you to be obligated to continue to cover your daughter until she is 26. The outer limits of a child support obligation is 23 years so typically people define emancipation to max out at age 23.

If your divorce ended in a judgment after a trial, the only way a judge would have ordered you to provide health insurance until your daughter is 26 is if there was a specific request made during that trial. If you do not remember any such request being made, chances are it wasn’t. The best way to assure yourself of your obligations is to re-read your divorce agreement or judgment.

Assuming the document does not require you to pay until she is 26, you are free and clear. To the extent you kept her covered until she was 25 was just an added benefit to her and evidence that, despite the bad relationship, you do care for her.

Furthermore, given her age and emancipation, it is not your Ex who would have standing to sue you – it is your daughter. And chances are she has no interest in doing this. Instead of getting angry over the unfair accusations leveled by your Ex, call your daughter. This may be the perfect opportunity to build a bridge by pointing out you have helped for two years longer than you had to and by now offering to help her with uninsured bills.

Q. My husband has been physically and emotionally abusive through our marriage. I always hoped he’d stop. Now have 8-month-old twins. I’m a teacher who took a one-year sabbatical so that I could care for the twins.

In July, my husband convinced me to rent our Massachusetts home and travel with him to Morocco on a six-month tourist visa. I learned there that – without my knowledge – he’d bought a house in which he wanted to stay permanently.

In Morocco, his abuse escalated. He pushed me down a flight of stairs, pulled a knife on me during an argument, and screams at our babies when they cry. He agreed I could bring the twins back to Massachusetts for three weeks for my mom’s 60th birthday surprise party while he stayed in Morocco. The real reason for leaving is that I was and still am terrified by his conduct.

Do I have to go back?

A. Not only do you not have to, you absolutely should not go back. Instead you need to file a complaint for divorce in Massachusetts. Check the boxes asking the court to grant you sole legal and physical custody of your babies, child support, alimony, and an equal asset division which would include the Morocco house. After the court issues a summons you’ll need to serve it on your husband in Morocco using the Hague Convention on Civil Service Abroad. See hcch.net. Both the US and Morocco have signed this and the Hague convention on the Civil Aspects of International Child Abduction.

Also request the probate court to issue an abuse prevention – keep away – order. Then send him a copy by email. In Massachusetts, any delivery of a restraining order – which results in your husband having knowledge of that order – is enough to hold him accountable for any violations of the order.

When you don’t return to Morocco as he expects, you might be a defendant in his case seeking a court order requiring you to return the twins to him in Morocco. But he should lose his case because you continue to have a job and home (albeit temporarily rented) in Massachusetts, and you had only a tourist visa in Morocco. So he can’t prove you gave up your Massachusetts domicile and agreed to permanently move with the twin to Morocco. Also, because your children weren’t out of Massachusetts more than six months, Massachusetts still has jurisdiction over them.

Your husband might show up here and try to fool you into letting him take the twins for a walk, etc. so he could then take the twins back to Morocco. Don’t be fooled. Always keep your cell phone with you. If he contacts you by phone, mail, or in person, immediately call 911 to say he’s violated the abuse protection order. I’d bet – even after he’s been arrested for violating the abuse protection order – he’ll never figure out he’s the fool.

Q    My husband owns a business.  As I expected, he refused to agree on our having one appraiser whose opinion would be binding on both of us. So we each hired and obtained separate appraisals for the business. His appraiser’s valuation was 35 percent less than the value determined by my appraiser. My husband said he’d split the difference or seek a third opinion.

My lawyer believes my husband knows his was a low-ball number and that splitting the difference means he’ll still get more than half the value of the business. My lawyer also suggests that we agree to have the valuation determined by an arbitrator.  I feel any trial is a bad idea.

Do you have another suggestion?

A    Arbitration is great, but only if the arbitrator is either a lawyer or retired judge who is experienced in presenting or evaluating evidence to arrive at the value of a business. An experienced appraiser will: insist on talking with the business owner (your husband), plus top employees and others who work in the business; go behind the numbers on tax returns to be sure all income is being reported; and change the company’s net income by adding back money spent for personal, nonbusiness, and unsupported expenses, etc.

Trials in the Probate Court have lots of interruptions because the judge also has to hear emergency motions, pretrials, status conferences, and so on. But the arbitrator will only be hearing your case. Your trial will go day-to-day from 9 a.m. to 4 or 5 p.m. with short breaks. After trial, the arbitrator can concentrate on preparing a decision. But the judge has to rule on hundreds of cases and prepare numerous findings while trying to find time to write a decision on your case. An arbitration trial is less formal because the trial is held in a conference room in the arbitrator’s office. Also, even though you and your husband need to pay the arbitrator, the cost of trying the case is usually much less. That is because the lawyers don’t waste time sitting around doing nothing while waiting for the judge to attend to other cases before getting back to your case.

The parties sign a contract that provides, among other things, that the findings of the arbitrator are final and binding, unless there has been a clear mathematical error or fraud, which is rare. Then the arbitrator’s decision is presented to the judge who – 99 percent of the time – will incorporate it into a judgment of divorce.

Arbitration may be more expensive than getting a third opinion even if you agreed that third value would be binding.

Even if you believe this information is a lot like sausage-making, then – depending on your diet – the end result may be far more palatable.

 

Q. I heard about clients being able to hire a lawyer on a limited assistance basis. I understood that to mean I could ask the lawyer to do certain things, but that I could, if I wanted to, directly deal with my husband’s lawyer, meaning I could correspond directly with my husband’s lawyer.

The lawyer I consulted refused to represent me this way. I suggested we use a collaborative approach that – if we had a contested court case – neither lawyer could represent us. My lawyer told me I was being stupid.

Despite feeling offended, I must be missing something here. What’s stupid about limited assistance or collaborative law?

A. Lots of lawyers are not willing to do limited assistance representation, and many do not do collaborative law.

Typically with LAR, you hire the lawyer for a particular task. For example, if you are worried about the initial motion for temporary orders for parenting time and support, you ask the LAR to prepare only those documents and represent you just at that hearing. After, you can take over on things like asking your husband to produce documents. But if need be, you can re-engage the LAR attorney to help you at a pretrial conference or, if no settlement is reached, at a trial.

Asking to essentially act as co-counsel with your LAR attorney is unusual. Your husband’s lawyer won’t know which of you will be responding. So something, particularly something time-sensitive, could slip through a crack in the plan. It’s not surprising your lawyer declined to be part of that plan.

Collaborative law starts with both parties signing agreements that the Collaborative lawyer will not litigate for either of them. So, if you don’t settle some things, you’ll have paid the Collaborative lawyer and also need to hire and pay a new lawyer to review everything in order to represent you in court. Collaborative lawyers believe their way is best because everyone is highly committed to settlement and use of resources – such as mental health professionals and financial planners, to reach an agreement.

Guess what? All divorce lawyers work hard to settle cases and – when necessary – use those other professionals. The difference is: if you don’t settle, you don’t need to hire a new lawyer. But if you use the collaborative law process, you’ll need a new lawyer. Here’s the catch. Many people feel trapped because they don’t have the money to hire a new lawyer and start over. So they settle on bad terms. And, some collaborative lawyers believe any settlement is better than going to court.

If you believe your husband won’t be reasonable, you might be fighting him and the collaborative lawyers. Sometimes when you come to the fork in the road, its best to take the well-traveled path. Experienced divorce lawyers settle more than 95 percent of their cases because they know when to settle and, if need be, how to try the case.

Q. When we got married, my wife moved from Massachusetts to live with me in Montreal. When things soured, she went back our then 5-year-old, Ellie, back to her folks’ house in Massachusetts.
I earn $30,000 Canadian as an apprentice electrician, which is about $24,000 U.S. I spend 10 percent of my income paying for my 10-hour, drive 700-mile round-trip drive from Montreal to see Ellie in Massachusetts. And, that’s with me sleeping on a couch in her parents’ home.
My wife’s Massachusetts divorce complaint wants me to pay alimony, child support, and contribute to Ellie’s after-school care and health insurance, even though the latter two would be free if she lived in Canada.

I found online and plugged our respective incomes into a Massachusetts child support calculator. The result showed me paying $198 weekly child support, which is $246.60 Canadian a week or $12,823 a year, about 43 percent of my gross income. Is that what I’m facing?

A. I’ve heard that some of the online child support calculators are inaccurate. You need to print out the form and do the calculations by hand.
Massachusetts child support is usually 20-22 percent of the gross income – not 43 percent. Of course you have to pay income tax on your income and you don’t get a deduction for paying child support. Your wife gets tax-free child-support dollars. But if there’s a written agreement or court order, the Canadian “Income Tax Act” lets you deduct alimony paid to your non-Canadian-resident ex-wife. So if you pay her unallocated support, you’ll pay less Canadian income taxes.

Also, because that 43 percent is so high, I suspect you didn’t convert your Canadian income into U.S. dollars before you did the calculations. Because there is a constant shift in the value of U.S. to Canadian dollar, the fairest approach is to start by using the annual average value as of Jan. 1. Then, if on the next Jan. 1, there’s been more than a 5 percent change in the exchange rate, the child support should be recalculated.

Massachusetts judges must order child support based on the child support guideline calculation. However, they have discretion to increase or decrease the child support. So, the judge can reduce the support by some or all of the expenses you incur in traveling to see Ellie. Your wife may argue there should be no deduction because you caused the separation.

You can argue she could have stayed and got work in Montreal where she and Ellie would have free health and after-school care. At the least, the judge should split your travel costs. Be sure to keep detailed receipts and a record of every little and large travel expense because the judges know it takes two to tango and two to fight, so there’s no one-way street.

Q. I was in an abusive relationship for many years and, as a result, there is a permanent restraining order including no contact in place. My ex and I communicate only by email about our children’s health and schedule. My ex’s sister lives in New York and has been threatened me in the past, but I do not have an order against her.

Over Labor Day weekend, he took our kids to New York to visit his sister. She apparently tried to keep the children with her in New York rather than let them return to me at the end of the weekend. She and my ex got into a literal tug of war type struggle with our 7-year-old, who returned to me Monday evening with significant bruising on her arms. Both our girls told me the bruises were from daddy and auntie pulling the younger one in separate directions.

I took photographs, and the next morning, went to the District Court for an abuse prevention order for our daughter. The district court added her, ex parte, to my restraining order. At the return hearing, my ex argued he did not abuse our child, he was trying to free her. I again tried to get her own abuse prevention order, but the judge continued the order, again on my permanent order. So now there is a permanent “no contact” “do not abuse” order for our 7-year- old. Our 9-year-old still goes to her dad every other weekend.

This was not my intention and I do not know how to fix it. What are my options?

A. I suggest you file a complaint for modification in the probate court – the material change is the abuse over the Labor Day weekend and the intervening district court order. The parenting plan should be revisited for both children if your ex thought it was OK to engage in literal tug of war over one child. At the very least, you should look to prevent him from having the children around his sister. Arguably, it is not in the children’s best interest to be separated every other weekend. But safety is an issue. There is a reason you have a permanent restraining order.

Once you are in front of the probate court judge, ask the judge to modify the restraining order. Probate court judges have the authority to act as a district court judge for the purpose of modifying a restraining order as it relates to visitation and child support. Explain to the judge what you intended – that your child be protected from abuse, but not that she have a permanent no contact order. Go on www.mass.gov/courts/ and search for the Guidelines for Judicial Practice for Abuse Prevention Orders. This will help you understand what the probate courts can do.

Also ask the judge to order anger management therapy. Your ex needs to learn his hands do not think for themselves.

Q. My next-door neighbor got divorced last year. Our respective husbands both work for the same company and earn about the same income based on annual bonuses, stock options, and other incentives.

My friend got alimony of 35 percent of her husband’s gross income. So I hired that same lawyer so that I, too, would get the same amount of my husband’s income as alimony. Yesterday, that lawyer suggested that I rethink staying in my present home because it’s so expensive to maintain, it would eat up much of my alimony. What makes my situation different from my neighbor’s?

A. In order to compare apples to apples, you’d need to look at your friend’s file – if it’s not impounded – at the probate court. You won’t be permitted to see her – or her husband’s – financial statements.

But not knowing those facts doesn’t stop me from making an educated guess about what happened. The Massachusetts Alimony Reform Act took effect in 2012. Since then, the Massachusetts appeals and supreme judicial courts have been busy bees making several decisions clarifying parts of the ARA. The first clarification about the percentage of alimony was in the 2014 Hassey case. That decision required the divorce judges to determine the difference in the parties’ gross incomes, followed by an alimony order of 30-35 percent of that difference – without regard to how much money the recipient needed to maintain his or her lifestyle.

Nevertheless, many divorce judges seemed to ignore Hassey’s ruling by continuing to award alimony based only on “need”. So I’d bet the judge who was going to hear your friend’s divorce strictly followed the Hassey decision. Your friend’s husband decided to settle and save money by not trying his case and then appealing the decision. And, even after paying 30-35 percent of his income as alimony, he probably still had more than enough money to live high off the hog.

This past week, the Young v. Young case was decided by the SJC. The SJC ruled that – regardless of how much money the payor earned now and even with the probability for higher earnings each year – alimony must only be in an amount which, as of the date of divorce, is needed to permit the other party to continue his or her then-current standard of living even if that amount is well below the 30-35 percent in the differences of their respective incomes. That means a former spouse doesn’t get any money above what he or she needs as of the time of the divorce. And those married to a low wage earner may not – by getting 35 percent of the difference in their incomes – get enough for them to continue living at the prior standard-of-living.

Your lawyer is giving you advice based on what the law is today, just as he told your friend what the law was last year. That was then and this is now. In the meantime, a lot of proverbial water went under the bridge.

Q. I got divorced about six months ago. I work remotely, which is fine so long as I have an internet connection. My ex has a day job, but we had approximately equal incomes, and no children.
The only issue was division of our two houses, one in Massachusetts and one in Naples, Fla. After the divorce, I moved to Naples. Now, just a few months later, the recent hurricane blew the Naples house to pieces.

I have insurance, but it isn’t enough to rebuild the house. To rebuild properly I’d need to use all my liquid assets. In the meantime, I don’t have a place to work from, so I’m worried that I’ll lose my job.

Is it possible to reopen the divorce to revise the settlement agreement?

A. I’d bet that, like most agreements, your agreement: a) was incorporated into, but not merged into the judgment of divorce; and (b) provides that the all assets were disclosed, you had time to (and maybe you did) consult with a lawyer, and that you signed the agreement without any duress or undue influence.
When the parties agreement is not merged into the judgment, then the court cannot change the terms of the agreement unless it involves child-related matters and, in some cases, alimony issues. That results in finality of the settlement, and it often allows each party to plan what they want to do in the future without having to get their ex-spouse’s permission. Although it won’t help your situation, if you want to read the relevant Massachusetts case, go to my web site, wendyhickeylaw.com and search for Ames v. Perry.

While you didn’t mention it, I assume you also permanently waived alimony. There, too, even if you lose your job, it is probably that the court would not reopen the case and award you alimony.
Of course, if you and your ex-husband had an amicable divorce, he might be willing to help you re-build either by giving or lending you some money or being on a mortgage.
When deciding a divorce case, the probate court judges do not have a crystal ball or try to guess what will occur in the future. The court uses the facts that were entered in to evidence by testimony and documents. Assuming your two houses were of equal value, the judge would likely have made the same decision made by you and your husband. And that decision would probably not be changed because your house was actually blown down.

So, as I’ve often said to clients, even though you have serious problems, you no longer have to deal with, make meals for, or accommodate your ex. As they used to say in the old days: You’ve got a lot of Moxie and the smarts to dig out from this mess. So why go back to that worn-out jalopy?

Q. My divorce lawyer wants to communicate with me via email. I understand why that is most convenient, but I am concerned about privacy. My husband has degrees in computer science. I’m a computer novice – barely literate. He no longer lives in the house, but I’m afraid to touch the computer. What if he installed spyware? What if he can read my emails?
He knows how to do this stuff – he used to joke with his buddies about what he could do for them if they got divorced.

I’m also worried he’ll get into my bank accounts and credit cards.

Is there a way to make my online banking and email communications safe?

A. There are options. The road you take depends, in part, on your cash flow. If you like your present computer, you need to find an IT person. Ask that your computer be password protected and protected from both viruses and hacking. Be sure the new password is something your husband won’t be able to guess. To be safe, change that password every month.

Or buy a new computer and have the IT folks set it up with solid virus protection programs. Open a new email account with a name or numbers you’ve never before used. Instruct your divorce lawyer to NOT copy or blind copy you on any communications with the other side. Instead, after he sends an email to the other side, only then will he forward a copy to you. This avoids someone hitting “reply all” which would then accidentally email the other lawyer information that was meant only for your lawyer.

If your online banking and credit cards are only in your name, you need to close your accounts and open new ones – maybe in a new bank and charge company. Also, change all of your user names and passwords. If any accounts or credit cards are in joint names, then get a new credit card and open a new bank account only in your name. If you’re concerned about his looking at your mail, have it sent to a post office box that you open in a nearby city or town.

But don’t worry about your husband finding out what you’re spending money on. That’s because your documents – and his documents – must be produced to the other side. And the total expenses are listed on the court-required financial statement. So none of your spending will be a secret until the divorce is over.

Of course, since he’ll see what you’re buying and where, why not buy some sexy lingerie which you could – not that you are planning to – use on a romantic getaway. If nothing else, his attempt to figure out why you needed that lingerie just might fan more flames than you intend.