Post-Divorce Problems: Who has to pay for College?

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses.  Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way.

When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.

If the issue of payment of college is modifiable in your agreement or defined vaguely or not at all, then when it comes time to determine how the college education expenses are going to be split, you should try to reach agreement with your ex-spouse on this issue.  If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing approving the division.

If your agreement is vague and you can’t agree, then you must file a Complaint for Modification to have the court determine contributions.  If you have a specific agreement, but it is modifiable and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification.

If this issue is put before a Judge, many Judges are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.

Often child support and/or alimony orders may also be changed by a Judge if college education expenses are going to be added to the total support obligation.

Click here to learn more about filing a Complaint for Modification.

The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Huxtables and Collaborative Law:

Cliff is a doctor and Clare is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Some of the children live at home but the number is constantly changing because Clare and Cliff keep their doors open to their children.

Clare recently informed Cliff that she has met another lawyer who she feels has more in common with and she wants a divorce. Cliff is shocked but after dealing with the initial shock, he realizes that he does not want the process to be acrimonious or to affect their relationship with the children. He has seen how other doctors have had their families and practices torn apart by drawn out litigation and does not want his children or patients to suffer.

Both Clare and Cliff consult with attorneys and are informed of the possibility of proceeding through mediation, collaborative law or litigation. Although, Cliff is wary of litigation, he is afraid of mitigation because Clare is a lawyer and he feels she would have an advantage. He agrees to hire a lawyer trained in Collaborative Law and requests that Clare does the same.

Cliff's lawyer presents a proposed Collaborative Law agreement in which both Cliff's attorney and Clare's attorney agree not to represent the parties if they change their mind and decide to litigate. Clare sees the value in having two attorneys who are vested in the settlement and would be motivated to avoid litigation.

Clare, Cliff and their attorneys meet ten times over the next twelve months. At times the process seems to be dragging and Cliff becomes very frustrated with the significant difference in values presented by his expert and Clare's expert for both his medical practice and Clare's interest in her law firm. He feels like they are spending too much money on experts and lawyers and are no closer to a settlement.

Clare has become very defensive in the Collaborative Law meetings because Cliff has begun requesting more and more restrictions on the parenting plan with the children, which has become overly complicated in her opinion. She feels that Cliff is trying to punish her for having an affair and not focused on what is best for their children.

Both Clare and Cliff explore litigation with new attorneys but because of the cost already invested with their Collaborative Law attorneys, they agree to give it another try and after two more meetings they are able to reach a Separation Agreement, which is presented to the Court with a Joint Petition for Divorce.

Cliff remains very bitter after the process because of the very high cost spent by both parties on their counsel and the length of time the process took.

COULD THIS HAVE GONE BETTER: Because of Cliff's fears and Clare's legal expertise it is unlikely this process could have gone much better. It is probable that Mediation, if successful, would have been a much quicker and cheaper process. But it is also possible that Mediation would have failed because of the imbalance of power between Cliff and Clare when it comes to their legal knowledge (although financially they are probably on fairly equal footing). Depending on the mediator and their style, Cliff's anger over Clare's affair could also have hampered this process.

Because of the business interests and the difficulty of assigning values to their business when they represent both assets and income, they could have been better served by having one agreed upon business valuator. This could have been done by the Collaborative Law attorneys or through mediation. Separate business valuations can often drive up the cost of a case, whether in Collaborative Law or Litigation.

Don't forget to vote for what the Kramdens should do: leave a comment here.

Are there any provisions of a Separation Agreement then must Merge?

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question.

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

For more information on whether your Agreement properly protects you with regards to the merger and survival clause you should consult with an Attorney. To consult with Kelsey & Trask, P.C. please call us at (508) 655-5980 or e-mail us.

What happens to my case if I move out of state?

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in.

Divorce Cases:

If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency (or in other unique circumstances) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case.

If your Divorce case has already been filed in Massachusetts and you or your spouse move to another state, then Massachusetts still maintains jurisdiction over you and your case. That means that Massachusetts can still make decisions about your property, children, and support issues, even if you don't live here anymore. Although, there are unique issues that relate to relocating children out of state, for the most part you will still need to participate in the Massachusetts divorce case. If you hire an attorney you may not have to attend all hearings, because they can attend for you and explain to the Court the unique circumstances of your case and your current residence out-of-state.

If you have settled a Massachusetts divorce case and both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown and that you signed the Separation Agreement freely and voluntarily. It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. To be excused from the uncontesting hearing you must file a Motion and Affidavit stating the reasons why the party cannot attend. The Affidavit should also include the testimony necessary for the uncontested hearing. You should consult an attorney regarding the drafting of the necessary language.

Modification/Contempt cases:

If you have a Divorce or Paternity Judgment in Massachusetts but have since moved out of state, Massachusetts will still retainer jurisdiction over certain parts of your case. For example, if your children still live in Massachusetts then any Modification or Contempt actions relating to the custody, visitation or support of the children will still take place in a Massachusetts Court. If you have moved out of state with the children you should consult with an attorney to figure out which state now has jurisdiction over these issues.

At Kelsey & Trask, P.C. we have handled many cases for out-of-state clients and can conduct a Free 1-Hour Consultation via telephone or Skype if you are interested in learning more about our services and how we would help you with your case.

Post-Divorce Problems: My Ex Isn't Following the Judgment

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children.

This Judgment can be amended or enforced as necessary and dependent on certain circumstances.  Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment.

In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual violates the judgment, the aggrieved party can file a Complaint for Contempt.  In short, a complaint for contempt is a new lawsuit in which one person is accusing the other person of not following the judgment and requesting sanctions.

There are two types of contempts: civil and criminal. The goal of a civil contempt is to force compliance with the violated court order, and they are far more common than criminal contempts. The goal of a criminal contempt is to punish the other party for violating the earlier court order.  Civil contempts are more common because usually you want the person to be forced to do what they were ordered to do in the first place, not just be punished for their failure to comply.

Click here to learn more about Contempt Complaints.

What is the difference between Merger and Survival?

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement with an attorney could save you much more in the long run.

So.... What is the difference between Merger and Survival?

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the Agreement.

If a portion of the Separation Agreement survives then this means that said portion does not combine with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is NOT open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances.

If you are not sure whether your Agreement protects you when it comes to the merger/survival clause then you should meet with an Attorney to discuss this. To meet with Kelsey & Trask, P.C. you can call us at (508) 655-5980 or e-mail us.

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date.

Therefore, for 90 - 120 days after your agreement is approved you are still officially married.  During that "nisi" period you cannot remarry, and your tax and health insurance status will be as if you are married.  Once the "nisi" period passes you are officially divorced.

During and after the "nisi" period your Agreement will remain in effect unless the Judge or the Agreement directs otherwise.  This means that usually immediately after your hearing you start acting as required by the Agreement.  If you owned any joint property, the Agreement will likely require you to complete certain paperwork during this time period, such as transferring car titles, or signing deeds. In addition, if you agreed to the transfer of any retirement account you should complete any necessary QDROs as soon as possible and present them to the court for approval and then the retirement account plan administrators for implementation.

Once these transfers are complete there usually isn't any further work for your attorneys, but there may still be some to-dos for you to successfully complete your divorce. You should review your Separation Agreement to ensure that you are currently in compliance with and continue to comply with all of your obligations.

To assist you in completing these processes we have provided you with a Closing Checklist below:

☐      Pay final bill for professional services & fees to your attorney.

☐      Retrieve original files from your attorney.

☐      Store file in secure, safe location.

☐      Update Post Office with any new information (change of address or name).

☐      Update Registry of Motor Vehicles with any new information (change of address or name), and file updated titles for any motor vehicle transfers required by Separation Agreement.

☐      Close any joint accounts as required by Separation Agreement.

☐      Notify your accountant and/or financial planner of any account changes due to your divorce, and the change in your marital status.

☐      Notify your employer human resources department of change in marital status as of the Judgment of Divorce absolute date.

☐      Except as required by Separation Agreement, update beneficiary designations and authorized users on any accounts (bank, retirement, life insurance, etc.).

☐      Schedule Consult for updating Estate Plan (previous estate plan likely voided by divorce).

☐      Update all online account passwords (bank, credit card, loan, e-mail, social networking, etc.).

☐      If Property Transfer: File Quitclaim Deed with proper Registry, and obtain time-stamped copy for evidence of recording.

☐      If Name Change: Obtain Certified Copy of Judgment of Divorce Absolute (after 90 days) directly from Court.

☐      If Name Change: Provide Certified Divorce Judgment to Social Security Administration with Form SS-5 .

Other Resources:

Modification - In the event of a change in circumstances you may be entitled to a Modification of your Agreement, for more information visit: www.criticalmassdivorce.com/modification

Contempt – If the other party fails to meet an obligation required by the Agreement you may be entitled to Contempt sanctions, for more info visit: www.criticalmassdivorce.com/contempt

How Long after a Divorce do I have to wait before getting Re-married?

In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

In Massachusetts the length of this waiting period depends on the type of divorce case.

In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. If the parties are unable to settle their divorce case, then a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.