Is it Better to Litigate or Settle?

The concept of divorce will be familiar to most if not all parties but, even though you’re familiar with it, you may not necessarily understand how the divorce process works. Without learning more about the process, you won’t be able to make an informed decision about whether to litigate in court or settle your divorce without court.

Divorces will be different in each circumstance, so you can’t necessarily go off experiences from other people. While some cases can be relatively simple, other couples don’t have it so easy.

Depending on the extent of the divorce and how complicated it is, it can sometimes last months or years, with plenty of legal professionals being involved in the process.

Your divorce attorney isn’t the only one that’s included in some cases, there are also real estate experts, accountants, consultants, etc. who will specialize for each part of the divorce. There’s all this before a settlement is negotiated and how long this takes is dependent on how willing both parties are to negotiate and what they want from the divorce.

We’ve yet to consider the matter of court. Would a trial be possible? Luckily, you may not have to worry about that as it’s estimated that around 90-95% of divorces rarely get to the point of court proceedings. However, if there comes a point where neither side is agreeing on a settlement and there have been several rounds of negotiations, a court could be a possible option.

Should you litigate or settle your divorce? Four Questions to Help You Decide.

Ask yourself the following four questions:

1. What divorce issues do you and your partner disagree on?

If your disagreements revolve around spousal support and child custody, these can easily be resolved through expert negotiations.

However, if disagreements are more complicated than this and there’s disagreement around who should have sole custody without the other spouse visiting or whether spousal support is required these may be issues worth sorting out in the court.

Essentially, you need to work out whether the discussions could eventually come to a conclusion or whether there’s absolutely no room for negotiation whatsoever. If the negotiations are completely off the mark with what you’re arguing for, a judge may be an option for you. It’s worth noting that litigation can be expensive, especially when you have to consider that advice and fees need to be paid for litigation solicitors as well as putting in a claim in the first place. So you need to be sure that the points you’re arguing for are worth the time and effort.

2. Will the time and expense of the trial be worth it?

settle your divorceThere’s a possibility that you would lose out more time going to court and sending the divorce to trial than by agreeing to your partner’s terms. Additionally, there’s a chance that what you come out with after court may not be the as attractive compared to what your partner was initially offering.

We’re not saying that you should settle just for the sake of it, but gain an understanding of where you stand. If you feel the time and expense is worth going to trial with a strong chance of getting the right decision for you, litigation would definitely be an option for you, but if there’s any doubt you should consider settling.

3. The stress of a trial will likely affect your family – can you go through with it?

Trials can bring extreme emotional stress and, particularly if you have children. Consider whether you and the people you love should go through the stress divorce court as it’s likely to be a major emotional rollercoaster.

4. The judge won’t know you – will that be risky for your case?

Most judges are completely impartial when it comes to making a decision over divorce proceedings. So, what they hear in court will be all the information they have to go off. Whatever conclusion that the judge comes to will be the final decision unless you have a reason to file an appeal.

It’s unfortunate to think that your divorce has got to this stage but if you have no choice, you may need to go to trial rather than settle your divorce. If there’s a chance that your husband is abusive or stubborn, or that there is something they’re hiding then going to court in front of a judge may be the best option for you.

(This article was written by J on August 21, 2019 and reposted with the permission of divorcemag.com)

Is it Better to Litigate or Settle Your Divorce?

Posted in Family Law | Leave a comment

Your Children’s Future If Your Ex Passes Away

Although you and your partner would have had your differences when filing for divorce, it would be extreme to think that you would wish the worst on them such as death.

However, it may have you wondering might happen if your ex passes away. On one hand, it would make your divorce go away but on the other hand, the support that you were receiving from them would also go away.

Because of that, it’s worth considering the options that you have to support your children.

Won’t the children automatically receive an inheritance if your ex passes away?

It’s common for divorced parents to assume that their children will receive an inheritance if their ex-partner were to pass away, but it can be dangerous to make that assumption. Even if your ex has a lot of money, you’ll have no control over what they decide to do with it – which means there’s a possibility your children could be left with no inheritance and you could be left without support.

This is why it’s important to explore all avenues in order to secure support for your children in case your ex passes away.

Securing Your Children’s Futures If Your Ex Passes Away

  1. Plan in advance

To ensure that your children’s future is secure, be sure to cover these issues during your divorce:

  • Ensure your ex maintains life insurance and has the children as beneficiaries for as long as they are required to pay child support.
  • Have your ex open a trust account in the names of your children that they can pay into regularly.
  • Ask your ex-partner to maintain the children as beneficiaries on retirement accounts for as long as they need to pay for child support.
  1. Cover all possible outcomes in your divorce documents

If you wish for either of the above to be possible options for your children, this needs to be stated clearly in your divorce documents. If it’s not stated or agreed upon between the two parties, then there is no obligation for your partner’s estate to provide child support after his/her death. Read through the divorce documents carefully to ensure that there’s a requirement for a life insurance policy and/or money set aside in a trust to cover the child support payments if your ex passes away.

  1. Check the circumstances of your ex-partner’s life insurance policy

The most practical way support can be provided if either party were to pass away is through life insurance. Your children’s financial futures can be secured if life insurance policies are maintained and premiums on the policy are paid. Including a proof requirement in the divorce judgment can reassure you that payments are being made and your children are secure financially – or better still, you should be the policy owner to ensure that the policy doesn’t lapse for any reason. The monthly premium amount can be added to the support you’ll be receiving from your ex to make sure you can afford to pay.

  1. Do your bit for your children

Although it helps to have the support of your ex-partner, you shouldn’t solely depend on their income to support your children. Consider taking out life insurance and creating a trust yourself, even if you don’t earn as much as your ex-partner.

You should consider making a will – or changing your will, if the most recent one was made before your divorce – to support those you love the most. To ensure that your will is written correctly, you can retain a Trusts and Estates attorney (known as will writing solicitors in the UK) who can help you step by step in the will-writing process.

Going through a divorce is hard, but dealing with a death can be even harder. There’s never anything wrong with planning ahead and getting the foundations sorted for any possibility that can occur. Exploring all these possibilities during your divorce will be the best way forward. Complications are less likely to arise if they’re addressed sooner rather than later.

( This article was  and published on July 24, 2019)

Posted in Family Law | Leave a comment

Pre-Marital Business Becomes Martial Property

Generally, marital property is property acquired
by either spouse during the marriage. On the other hand, premarital property, owned by a spouse before the marriage, is considered separate property and isn’t split up during a divorce.

Sometimes the lines get blurred, especially if you don’t keep your separate property truly separate, as a South Carolina case demonstrates.

In that case, a husband formed a business before marrying his wife. Several years before they got married, the wife, who was a family friend at the time, loaned him money for the company and left college to

work for the company.
After filing for the divorce, the wife sought to share

in assets related to the business. According to the wife, she assisted her husband with the company while they were married, working without pay, and her husband held her out as an equal partner. She said she also obtained loans for the business and invested in it.

A divorce judge said this was enough to “transmute” the business to marital property. An appeals court agreed, upholding the judgment. Now, the business will be included in the marital estate and the wife will be entitled to her share.

(This article was published as part of the Legal Matters Family Law Summer 2019 newsletter)

Posted in Family Law | Leave a comment

What is Child Support Actually For?

The purpose of Child Support is to protect children from the economic impact a divorce, which can affect their standard of living. Child Support is for basic needs that will give the child the same quality of life that the child enjoyed throughout the marriage. This covers typically necessary things such as shelter, groceries, and clothes. That being said there

Child support does not specifically include the following:

  • monies owned for a parent’s share of child’s medical expenses;
  • Percentage of tuition for private school or college
  • Extracurricular activities

While a parent may not be automatically liable for some portion of these costs, if the children were already creating or were expected to develop these sorts of expenses at the time of their parents’ split, it’s difficult to argue that a parent shouldn’t continue to be responsible for some portion of this expense if she or he can afford to help.

A divorcing parent may not be automatically liable for a share of the above cots, however; if the child already incurred these expenses and was anticipating occurring before the parent’s divorce, it’s a tough argument to say that the non-custodial parent should not continue to be responsible for these expenses.

Things like daycare, extracurriculars, medical, and college expenses are addresses as separate parts of the divorcing couple’s separation agreement. This avoids one parent’s refusal to contribute to extracurriculars by saying “this is what I pay child support for,” when that is not necessarily the case. This does not mean that the primary parent is allowed to sign up for the child(ren) for expenses extracurriculars without consulting the other parent. The court will take a “common sense” approach and look at the situation and decide what would be in the child(ren)’s best interest. This is why the language in a separation agreement, addressing these issues, is of vital importance. If the wording simply says “both parents have to agree” one parent could simply say “I don’t agree” to everything and then the issue would have to go back to court. Separation agreements are of the utmost significance as they can cause more harm than good down the line if not worded and appropriately addressed to meet the couple’s needs. That’s everyone needs to consult an attorney experienced in this field who can give their case the individualized attention to find out what needs to be addressed.

Posted in Family Law | Leave a comment

Mandatory Parent Education Programs

Many people aren’t aware that the Massachusetts Probate and Family Court requires parents to complete a mandatory parent education class. This is required if you are divorcing and have minor children, even if the divorce is uncontested. This is extremely important as the Judge can choose not to enter a final Judgment of Divorce Nisi until both parents file their certificates that they receive after completion of the 5hour class (which is usually spread into two 2.5 hour classes over the course of a couple evenings). The class is $80.00 and divorcing parents must attend separate classes from each other. Most clients find that the class is not overwhelming as it is just designed to educate parents on how divorce affects children as well as offer tips to make co-parenting easier. You are required to attend the class within 30 days of being notified about it. We advise our clients to get it over with quickly in order to avoid any possible conflicts or sanctions for noncompliance down the line.

Below is the information for approved Parent Education Programs in Essex County:

Divorce Workshops, LLC
Divorce and Its Impact on Children’s Development
374 Broadway
Lynn, MA
978-907-3084
Contact: Dina Guay
www.divorceworkshops.org

Divorce Workshops, LLC
Divorce and Its Impact on Children’s Development
385 Essex St
Salem, MA
978-907-3084
Contact: Dina Guay
www.divorceworkshops.org

Parent Education and Custody Effectiveness (PEACE)
North Shore Counseling Center
900 Cummings Center, Suite 324-S
Beverly, MA
978-922-2280
Contact: Reception Desk
Lynn Huber, LICSW
Program Director for Parent Education
www.nscc-inc.com

Family Healthy Choices Parenting Education
Peabody Inst. Library (Danvers Town Library)
Gordon Room
15 Sylvan Street
Danvers, MA 
978-887-6342
Contact: Jill Levine
www.familyhealthychoices.org

Putting Children First
Family Service of Merrimack Valley
Merrimack College (McQuade Library)
North Andover, MA
978-327-6650
Contact: Rosey Gonzalez
www.fsmv.org

Family Healthy Choices Parenting Education
Newburyport High School, Classroom 310
214 High Street
Newburyport, MA 
978-887-6342
Contact: Jill Levine
www.familyhealthychoices.org

Positive Co-Parenting in Difficult Times
Psychotherapy Associates of North Reading
Northern Essex Community College
100 Elliot Street
Haverhill, MA
978-664-2566, ext. 5
Contact: Dr. Donna Whipple
www.panr.net

Reducing the Effects of Divorce (Spanish & English)
CO-PEtrainings
Cambridge College
280 Merrimack Street
Entrance North B, 5th Floor, Suite 502
Lawrence, MA  01843
978-266-0234
Contact: Arthur Baxter
www.copetrainings.com

Please visit https://www.mass.gov/service-details/parent-education-programs for the list of programs in other counties throughout Massachusetts.

 

Posted in Family Law | Leave a comment

Recent Child Support Guideline Changes

6 months ago (September 2017), Massachusetts substantially changed the game of family court and enacted the new Massachusetts Child Support Guidelines. These adjusted guidelines supersede all previous versions and bring with them some major changes. Some of the notable adjustments that are most likely to affect the average person are:

  • Daycare Expenses: The guidelines now take the expenses of Child Care and Health Insurance into much larger consideration.
  • Parenting Time: The prior guidelines consisted of three categories of parenting time (a basic formula, a formula for when the parties shared equal parenting time, and a separate formula for when one parent had more than 1/3 but less than 50/50 parenting time). The new guidelines simplified this was leaving us with only two possible formula; when the parents have equal parenting time when they do not.
  • Child Support for Children over 18: Child Support was always confusing for children that were no longer minors. If a child is is over 18, but still principally dependent on the parent, a parent could still receive child support. That is even true for children up to the age of 23 if they were full-time students. The new guidelines have implemented a 25% reduction in the amount of child support paid for children are over the age of 18.

 

Posted in Family Law | Leave a comment

Quote of the Day

“Whoever is trying to bring you down is already below you” -Uknown

Posted in Uncategorized | Leave a comment

Quote of the Day

“In three words I can sum up everything I’ve learned about life: it goes on.”
― Robert Frost

Posted in Uncategorized | Leave a comment

Quote of the Day

” You don’t always need a plan. Sometimes you just need to breathe, trust, let go and see what happens.” -Mandy Hale

Posted in Uncategorized | Leave a comment

Which Parent Gets Child-Related Tax Breaks After Divorce?

Divorce causes tax issues; it’s as simple as that.

Are you the custodial parent?

For tax purposes, a child is usually treated as a “belonging” to the parent who has custody for the greater part of the year. That parent is considered to be the “custodial parent” and the other the “non-custodial parent.”

The general rule says that only the custodial parent can claim the dependent exemption deduction for the child. However, an exception to the general rule allows the custodial parent to release to the non-custodial parent the right to claim the designated child as a dependent. Making this concession doesn’t help the custodial parent’s tax situation, but it is often a necessary part of settling a divorce.

The Non-Custodial Parent Rule Can Mean Big Tax Savings

Under the non-custodial parent rule, the designated child is treated as a qualifying child of the non-custodial parent if all the following requirements are met.

  1. Support Requirement: Over half the child’s support for the year must be provided by one or both parents.
  2. Divorced or Separated Requirement: The parents must be divorced or separated under a written agreement at the end of the year or have lived apart duirng the last six months of the year.
  3. Custody Requirement: The child must be in the custody of one or both parents for over half the year.
  4. Written Declaration Requirement: The custodial parent must sign a written declaration releasing to the non-custodial parent the right to claim the designated child as a dependent for the year. The easiest way to meet this requirement is to have the custodial parent sign IRS From 8332 (Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent). The non-custodial parent must attach a copy of Form 9332 to his or her Form 104.

Dependency Exemption Deduction: This deduction is $4,150 for 2018 (up from $4,050 in 2017).

Child Tax Credit: This credit is $1,000 for each eligible child (subject to phase-out for higher-income parents).

Higher Education Tax Credits: The American Opportunity Credit can be worth up to $2,500 during the first four years of a child’s college education. The Lifetime Learning Credit can be worth up to $2,000, and it covers just about any higher education tuition costs (Both credits are phased out as the parent’s income goes up, but Lifetime credit is phased out earlier.)

Student Loan Interest Deduction: This deduction can be for up to $2,500 of qualified student loan interest expense paid by the parent (subject to phase-out for higher-income parents).

Tuition Deduction: This deduction can be as much as $4,000 for higher education tuition and mandatory enrollment fees. (At higher income levels, the maximum deduction drops to $2,000 before being completely disallowed at still-higher levels).

Some Breaks Are Available to Both Parents

Whether the non-custodial parent rule applies or not, the non-custodial parent can usually claim the tax breaks listed below as long as the first three noncustodial parent rule requirements are met (the support requirement, the divorced or separated requirement, and the custody requirement). The custodial parent can also usually claim these breaks:

  • Itemized deductions for the child’s medical expenses paid by the parent.
  • Tax-free employer-provided health care benefits for the child.
  • Tax-free health savings account (HSA) distributions to cover the child’s medical expenses.

Some Breaks Are Available to Both Parents

The non-custodial parent cannot claim the following based on a child to whom the non-custodial parent rule applies. The custodial parent can if he or she meets the applicable tax-law requirements.

Head of Household Filing Statue: Filing as a head of household is better than filing as a single taxpayer, because the standard deduction is bigger and the tax brackets are looser. A non-custodial parent cannot claim head of household filing status based on a child who falls under the non-custodial parent rule.

Earned Income Tax Credit: In 2018 this credit can be worth up to $3,468 for one qualifying child and up to $6,444 for three or more qualifying children (up to $3,400 and $6,318 respectively in 2017). It is phased out as the parent’s income goes up. A non-custodial parent cannot claim the credit for a child who falls under the non-custodial parent rule.

Child Care Tax Credit: This credit can range from $600 to $1,050 for one qualifying child ($1,200 to $2,100 for two or more), based on the parent’s income. A non-custodial parent cannot claim the credit for a child who falls under the non-custodial parent rule.

Tax-Free Childcare Assistance: This break allows up to $5,000 in federal income-tax-free reimbursements for qualified childcare expenses under an employer plan. A non-custodial parent cannot receive tax-free reimbursements for a child who falls under the non-custodial parent rule.

(QRGA, LLP Nov. 16th 2017)

Posted in Family Law | Leave a comment