by Andy P. Miller, Esq. on February 11, 2009
While divorce is rarely truly amicable some divorces are harder than others. Sometimes difficult situation precede the divorce such as physical or emotional abuse or substansance abuse. These situations make initiating a divorce that much more diffuclt beause of the fear of reprecussions from your spouse. You should be aware that there are options to help you take the steps necessary to begin the divorce and to ensure your safety and the safety of any children invovled.
One of the options available is called an Order to Vacate the Marital Home. Often referred to as vacate orders, they are governed by Massachusetts General Laws ch. 208 §34B. Basically the order allows the court to remove your spouse from the home for up to 90 days. This period of time can be extended if the “court deems [it] necessary or appropriate if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order.” I should also mention that a vacate order can be sought anytime during the divorce action. This means that even if you and your spouse had planned on or continued to live together after the divorce action started and things take a turn for the worse, you can stil pursure this order.
My experience is that these orders are an “extraordinary” measure and that the court takes them very seriously. A vacate order should never be pursued out of spite. While it is possible to pursue a vacate order on short notice (three days is the minimum according to the statute) generally your spouse has a right to be there and must be given notice. However, in situations where there is “substantial likelihood of immediate danger to [the moving party's] health, safety or welfare or to that of such minor children from the opposing party” the court may issue a vacate order without notice to the other party. In this situation though notice must immediately be given after the order is issued and the party ordered to vacate is given the opportunity to be heard by the judge no later than 5 days after the order issued.
There are other options, such as restraining orders, that are available as well. Your safety and the safety of your children should be your most important concern. If you are in fear of your spouse and are seeking to begin divorce proceedings or feel unsafe after the proceedings have begun you should seek help; there is protection available.
by Andy P. Miller, Esq. on February 10, 2009
Alimony — sometimes referred to as spousal support or maintenance — is governed by Massachusetts General Laws ch. 208 §34. Here is what the statute says in relevant part:
In determining the amount of alimony, if any (emphasis mine), to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. ..
That probably seems like a lot of legalese…and it is. So does it mean for you? It means that alimony is awarded at the court’s discretion based on the factors above. More importantly the above language means alimony is NOT automatic. I often get inquiries regarding alimony and the concern generally revolves around the length of the marriage. People assume that the longer you are married the more likely the need to pay alimony. This is simply not true. Length of marriage is a factor but it is not solely determinative.
What Do the Factors to Determine Alimony Mean?
So what is the practical effect of this? When is alimony paid in Massachusetts? Do women ever pay alimony? First off, the statute applies equally to men and women. The higher wage earner is the individual that will be paying the alimony whether that earner is male or female is irrelevant. Also, an award of alimony does not necessarily mean that someone is going to be paying for life. Often courts will award alimony for a fixed amount of time. Again, the courts look at the factors above so alimony isn’t as predictable as one would like. The good news though is that alimony is not often awarded. I have heard some attorneys sum up alimony as being based on “need and the ability to pay.” Most middle-class families are not in an economic situation to pay afford the usual expenses PLUS child support PLUS alimony. This simply is not often feasible.
If you have any questions or concerns about alimony in your divorce please do not hesitate to contact me for a free consultation.
by Andy P. Miller, Esq. on February 2, 2009
A common problem in divorce situations (either during or after the divorce) revolves around a parent’s new boyfriend or girlfriend. The problem is especially sticky if the new boyfriend or girlfriend comes into the picture during or shortly after the divorce is finalized. Emotions are still at their height and the pain is still quite fresh. Often the other parent will want to lash out and use the new boyfriend or girlfriend as a “weapon” to prevent the other parent from having time with the children.
In Massachusetts there is no clear cut answer on how to deal with this difficult situation and the answer generally lies with each individual judge. The only guidance a judge has in this situation in Massachusetts is our “best interest of the children” standard. I would also suggest to parents confronting this situation to use this standard as well. Before you act, stop and think about what is your children’s best interest. This isn’t to suggest that unrelated third party visitors (a term that courts use for a wide variety of individuals that are not directly related to the parties and the children) are always a bad idea, however, courts do take a cautious approach. My experience has been that courts are very wary of exposing children to this often awkward and confusing situation. The age of the children also seems to play a significant role; the younger the child(ren) the less likely a court is going to allow any sort of contact or even consider the even more delicate issue of “sleeping over.”
by Andy P. Miller, Esq. on January 30, 2009
The beginning of the divorce process is front-loaded with a lot of critical information and rules that must be followed. One of the most important rules is contained on the bottom of the summons that either you had served or were served. Supplemental Probate Rule 411 puts a restraining order on both parties.
Let’s be clear: even if you are the party that initiated the divorce, the restraining order still applies to you. Let’s also stop for a moment and focus on the “restraining order” aspect. Most people associate restraining orders with physical harm or a need to keep someone away. This type of restraining order doesn’t work that way; it is often referred to as a “financial restraining order.” The purpose of the restraining order is to prevent the parties from liquidating or dissipating assets during the course of the divorce in order to prevent the other spouse from receiving his or her equitable share.
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by Andy P. Miller, Esq. on January 29, 2009
Just because your marriage hasn’t been going well or just because you and your spouse may have discussed the possibility of divorce doesn’t always mean you are ready for that knock on the door. By knock on the door of course I mean the constable or sheriff coming to serve you with the papers that will begin your divorce process.
Too often people will call me or meet with me weeks after they have been served. Most people do not want to admit or acknowledge that the divorce is now happening. Some people assume that by doing nothing they can prevent the divorce from happening. I can assure you that in Massachusetts this is not the case; unless you can find grounds to dismiss the complaint or the plaintiff voluntarily withdraws the complaint, the divorce will proceed.
Start by reading the summons. There is a lot of important information on that one page. One very critical piece of information is the automatic restraining order that is mentioned on the bottom. This order prevents both parties from, among other things, engaging in certain financial transactions. This effect of this automatic restraining order applies immediately and failure to comply may result in contempt of court.
After reading the summons and the immediate effect of the automatic restraining order the next critical deadline is the answer. An answer but given to the plaintiff’s attorney. (In the event that the plaintiff is representing him- or herself then the answer must be given to him or her.) Failure to do so could result in a loss of certain rights.
Finally, in all legal matters it is highly advisable to seek the counsel of an attorney. Divorce will have a significant effect on your financial and legal rights. Do you really want to travel on such an important journey without a compass? Ask friends, co-workers, and family for referrals. Check with the Massachusetts Bar Association or your local county bar association. And certainly feel free to contact me for a free consultation.
by Andy P. Miller, Esq. on January 12, 2009
The concept of Contempt (sometimes called contempt of court) is fairly straight forward in Massachusetts. If a party fails to comply with an order issued by the court, he or she is in contempt. There are two types of contempt, civil or criminal. In the Probate and Family Court setting, civil contempts are the most common and often arise from parenting plans or orders relating to children. It is important that parties realize that when a judge issues an order — even if it is a temporary order — it is to be followed exactly as it is spelled out in the order. If you are unclear as to what a specific order may mean I strongly advise you to contact your attorney or seek the advice of an attorney.
As for the process, this too, is relatively straight forward. First, let me begin with a word of caution. A Complaint for Contempt is an important vehicle in the family court to ensure that all parties comply with an order. That said, the court’s time is incredibly valuable and you should considering pursuing a contempt in those instances of when a party repeatedly disobeys an order. I would not recommend filing a contempt if your spouse is five minutes late one time bringing the children back. However, if he or she is repeatedly late then this is likely an appropriate use of a contempt filing.
Once a party has disobeyed the court order the first step in the process is filing the complaint for contempt. Like in most legal matters, I strongly recommend you find an attorney to help you through the process. Once the complaint for contempt has been filed the court provides you with a summons. The summons must be served on the opposing party (the party that has disobeyed they court orders). The court will assign a date for hearing the contempt complaint.
On the date of the hearing the judge has a wide variety of options in dealing with the contempt from less severe, ordering the party to obey again, to very severe, community service or jail time. Attorneys pursuing a contempt also often pursue attorneys’ fees and costs associated with bringing the complaint for contempt. After all, the breaching party caused unnecessary cost and lost time.
One strategy I sometimes recommend to my clients while pursuing a contempt is also to pursue a modification. A party’s repeated diversion from a court order, stipulation, or agreement may be an indication that the status quo isn’t working and that new “rules” need to be made. I always stress to my clients the need for efficiency. Courts are busy, attorneys cost money, so why not make full use out of your time instead of every few months hiring an attorney and going to courts.
by Andy P. Miller, Esq. on January 9, 2009
Here is something that is obvious to everyone who has every been affected by divorce: Divorce is hard. One of the biggest challenges though comes long after you separate the house, cars, furniture, etc. After that is all done you have to separate your lives. For so long you had been accustomed to another person to lean on or turn to. The realities of a divorce really start setting in when a person goes to turn to that spouse and of course he or she isn’t there.
Sometimes it is easy to fall back into our old roles even after the divorce is finalized. This is dangerous territory; you divorced for a reason. Cooperation is certainly important and healthy, especially when there are children involved, but there is a difference between cooperation and dependency. Make sure you know where to draw the line with your former spouse. Here are a few tips:
• Establish guidelines, in writing if necessary.
• Create truly separate households.
• Build a strong support system outside of your former marriage.
• Recognize when severing emotional ties has become too daunting and get professional help.
Your divorce was hard (and expensive) enough. Avoid more pain and potential costs by learning to draw lines while still working together.
Source: CNN.com
by Andy P. Miller, Esq. on January 8, 2009
As I have said many times, divorce is tough. Divorce when children are involved is often even tougher. But regardless of whether children are involved or not — and for some parents this may be tough to hear — the best thing to do when starting the divorce process (and as the process goes through its many stages) is to take care of yourself FIRST. There is an analogy I have seen referred to often in articles and books about divorce that I like to use as well: there is a reason that flight attendants instruct you to put on your oxygen mask before assiting others. The concept is easy to understand: we cannot really help those around us until we are secure first.
As an attorney I have seen this first hand. Often people will be so busy assisting other that they are not focusing on themselves which often hurts in the divorce process. Inevitably the pain or needs that person is putting off will come and that pain or those needs usually comes at the most crucial moment and can cause unnecessary delay and therefore unnecessary cost. You cannot be looking out for your soon to be ex-spouse. While your children are a top priority I can assure you that if you put your needs second you aren’t really doing anything for your children. As hard as it may be, YOU need to be first in the divorce process.
by Andy P. Miller, Esq. on January 7, 2009
Let’s set a set of facts: You went to the Probate and Family Court and received a judgment in your matter, be it for a divorce, support, custody, paternity, etc. As part of that judgment there were undoubtedly conditions or “rules” to be followed. However, now you are a few months or a few years out from that judgment and you realize that some of the conditions are not working. Or perhaps you want to change the rules because of circumstances unforeseen at the time the judgment was entered. Does this sound familiar? I know I get a lot of calls and questions with some variation of these facts.
So what exactly is the option for an individual living in the above facts? Well the same basic answer is that you need to pursue a Complaint for Modification. The standard for obtaining a modification is defined by Massachusetts General Laws ch. 208 §28, which states:
[M]odifying its earlier judgment as to the care, custody and maintenance of the minor children of the parties provided that the court finds that a material and substantial change of circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.
Be aware that the above quoted statute is specific to divorce but the standard applies to modifications in a variety of settings; the moving party will need to demonstrate “a material and substantial change in circumstances.” This means that simply because you do not like a specific condition or rule that you can go into court and change the judgment. While the standard is not prohibitively hard to meet it also ensures that parties try and work things out before rushing into court.
Modifications are important tools when used properly and effectively. One recommendation I have for clients when pursuing a modification is efficiency. The court doesn’t want to see you every few months so when you are seeking a modification, or determining whether a modification is appropriate, don’t just focus on the one issue that is nagging you most. Step back and look at the whole situation as objectively as possible. I don’t think it makes sense to pay an attorney to go to court five times when all the issues can be addressed at one time.
by Andy P. Miller, Esq. on January 6, 2009
During a divorce it is critical for you to take care of yourself. A divorce is emotionally taxing and difficult and paying attention to your needs is essential to getting through the divorce process with some sanity. However, when children are involved in the process taking care of their needs is at least as important as taking care of your own — and often it is more important.
Children have a tendency to blame themselves for the divorce and often believe that they have in some way caused the breakdown in the relationship. As a parent it is essential that we let our children know that they have nothing to do with the divorce.
Here are a few excellent tips to help you guide your children through this tough time:
1. Respect the other parent. This is cannot be overstated. You and your spouse may be ending your relationship for a variety of reasons but your child and that parent are still moving forward with their relationship. Respect your child by not letting your venom for the other parent poison the relationship between that parent and your child.
2. Encourage your children to be just that — children! Divorce is a “grown-up” problem. Yes, this applies even to children in their adult teens. The divorce is between you and your spouse and involves your issues. Don’t let your child get mixed up in those issues. Make sure your child is still involved in all of the activities he or she was before. Normalcy is important.
3. Focus on the future, not the past. Your separation and subsequent divorce mean a lot of change. Don’t let your child dwell on the past and try to determine why his or her family is in the situation. Talk about the future and the new beginnings and the new challenges. Be honest. Focus on the future though, so your child can see that the present will not last forever.
4. Never stop telling them that this isn’t their fault. We all know a child who has gone through a divorce. It seems almost like a cliché now but children really do blame themselves. Remind your children whenever it is appropriate that the current situation is in no way their making.