When it comes to children; unmarried parents have rights and obligations, too.

Massachusetts Courts have taken pains to see that children of unwed parents and married parents, at least theoretically, are treated alike; and that children of unwed parents should be entitled to the same rights and protections as children of married parents. Here are some of the legal boundaries that maintain equality for unmarried parents in Massachusetts law:

Unmarried parents have rights to see their children, and obligations to support them. Child support obligations can be retroactive to the date of the child’s birth. The Massachusetts Child Support Guidelines apply to children of unwed parents in the same way they apply to children of married parents.

  • Unmarried parents have rights to seek, or obligations to provide, health insurance for their children, and to pay uninsured health expenses for them.
  • Unmarried parents may be obligated to provide (or seek for their co-parent to provide) life insurance to secure child support and other child related obligations.
  • The Court has the authority to make orders concerning custody and parenting of children of unwed parents.
  • The Court has the right to enter orders concerning payment of college or extracurricular activities.
  • Children of unwed parents are entitled to receive a share of their parent’s estate if there is no Will or other estate plan in place.
  • Curious about the rights or obligations of yourself or a co-parent? Ryan Faenza Carey is here to help you navigate the law in the best interests of your child(ren). Contact us today.

Federal regulations mandate each state review child support guidelines at least every four years. In September 2017, Massachusetts enacted new child support guidelines after a review. However, the Trial Court has worked to alleviate several issues outstanding from these revised guidelines by amending the 2017 guidelines, as well as completely overhauling the child support guidelines worksheet in June 2018.

Here’s a breakdown of what has changed, and the still-remaining issues that could be addressed in future amendments.

What’s New?

The 2018 child support guidelines give a credit for the amount of medical, dental and/or vision insurance or child care costs to the party who pays these expenses (rather than 

just a deduction from their total income).

Prior to the June 2018 amendment, there was a problem of “double counting” the credit that a party receives for paying insurance or child care, in a shared physical custody arrangement. Prior to the June 2018 amendment, to calculate child support for a 50/50 parenting plan, the court

calculated the guidelines with each parent as the custodial parent and the net amount would become the child support payment. The challenge with running the 2017 guidelines twice was that the party who pays the insurance or child care would receive twice the credit. The June 2018 child support guidelines alleviate the necessity to run the child support guidelines twice, therefore preventing the issue of double counting any insurance or child care credit.

Child support calculated differently for families with children over the age of 18, and additional children under the age of 18.

The September 2017 child support guidelines reduced support orders for children over the age of 18. However, the chart included in the 2017 child support guidelines resulted in some puzzling results for any families of four or more children, where at least one of the children was over the age of 18, effectively awarding a greater amount of child support to a party who has custody of just three children under the age of 18, than to a party who has custody of three children under the age 18 and at least one child over the age of 18. The June 2018 child support guidelines stated, in a comment, an attempt to “fully preserve the increases in child support for additional younger children,” as reason for amending the way child support is calculated.

What Changes Could be Next?

While the new Massachusetts child support guidelines are utilized in the majority of custody cases, there are still several issues with the guidelines that have not been addressed by the Trial Court, causing some inconsistencies in rulings among Judges. These issues could be up for review next time the child support guidelines are amended.

  • The child support guidelines only calculates orders at a combined total income of $250,000 between the parties.   Any income above and beyond the combined $250,000 is to be addressed at the discretion of the Judge. The Trial Court has yet to address a uniform method for handling such an overage when calculating the child support guidelines.
  • The new child support guidelines deal with different custody arrangements: primary custody of all children to one parent, each parent having primary custody of one or more child, and joint physical custody of the children. However, there is no method set forth regarding how to calculate child support when the parties have multiple children and to which the parties share physical custody of one or more children, and one or the other of the parents has primary physical custody of at least one child. Under such a parenting plan, there are no instructions as to how to calculate the child support guidelines.
  • The child support guidelines remain silent on whether or not child support should be reduced in one or both parents are contributing toward college, and if so, what the formula should be for such a reduction.

If you are involved in any legal matters involving the issues of custody and child support it is important that you speak with an attorney who specializes in the field of domestic relations law to ensure that all of your rights are preserved. Contact us today so we can help.

To read the full Massachusetts Child Support Guidelines, visit https://www.mass.gov/info-details/child-support-guidelines. 

An explanation of common law marriage in the state of Massachusetts

It is becoming increasingly common for couples, both same sex and heterosexual, to live together instead of formally marrying. Oftentimes, these couples act like a married couple, naming each other as beneficiaries on bank and investment accounts, sharing joint bank accounts, buying property together and sharing living expenses. Many raise children together, too, and in some cases, as with blended families, there are also stepchildren. Breaking up in these relationships can sometimes be more complicated than a legal divorce, particularly when these relationships are long term. Many people mistakenly believe that if they are with their partner for 7 years or longer, they have a common law marriage, meaning that the law considers them as being married even though they did not obtain a marriage license and have a formal marriage ceremony.[1]

Massachusetts does not recognize marriage by common law, except that if two individuals were considered married by the common law of another state, and if they then moved to Massachusetts, Massachusetts would have to recognize them as being married, and they would have to obtain a legal divorce and their property is subject to division. Since Massachusetts does not recognize common law marriage, no matter how long you live together or how you hold yourselves out to others, you are not married and you do not receive the marital rights or protections afforded by our state court system. This means you cannot get spousal support or claim an automatic right in property of the other.

[1] In those states that do recognize common law marriage, there are typically 3 elements that determine if a common law marriage exists: 1) the couple agrees they are married 2) they live together and 3) they hold themselves out to others as married.

A list of the assets and properties that can be up for division during divorce negotiations

Most people are aware that real estate, bank accounts and furnishings are part of the “property” that will be divided in a divorce. But these aren’t the only ‘things’ that can be split (or traded for another asset) in divorce. Massachusetts law states that all property, however acquired and whenever acquired is “subject” to division, irrespective of title.

Here is an abbreviated list of the less-well-known types of assets which may be subject to division in divorce:

 

Retirement Assets. Pensions, retirement accounts, IRA accounts, Keough accounts, profit sharing accounts and other retirement-type accounts will be considered in property division. In the case of pensions and other “defined benefit” retirement type accounts, those accounts may need to be valued by an actuary if they are traded off for other assets. Note, however, that retirement assets are generally treated differently because they are “illiquid” and generally “pre-tax.” Social security benefits are not a divisible asset; however, they may be considered in other ways by the Courts in some circumstances.

 

Employment Assets. If you or your spouse has stock options, pre-tax dependent care plans or medical expense savings plans, deferred compensation, restricted stock, phantom stock, profit sharing or other benefits associated with employment, these may be subject to division. In the cases of future payments, some assets may be divided on an “if, as, and when” basis.

 

Inheritances, Expectancies, Trusts. If you or your spouse have or will receive an interest in an estate or trust or as a beneficiary, that interest may be considered as well. If a family member has recently passed away, and you are a named beneficiary/heir (or determined by law to receive distribution of the property when there was no Will)), these would be recognized as assets or future interests that may be divided or at least considered in your divorce.

 

Business Interest. If you or your spouse owns a business, the value of that business, if any, is likely to be divided or at least considered in your divorce.

 

Trademarks, Copyrights, Patents, Royalties are other interests which may be divided or considered in some way as part of your divorce.

 

Lawsuits and Legal Claims. If you or your spouse is a plaintiff in a lawsuit (or a potential plaintiff), any monies or assets flowing from your claim as plaintiff may be considered as an asset or interest to be divided in divorce. Similarly, a potential liability or legal claim against you or your spouse as a defendant is likely to be considered as well in your divorce. Monies due you or your spouse, or owed by you or your spouse, under a Promissory Note or other instrument may be considered as well.

 

Tax Assets or Liabilities. If you or your spouse has unused passive tax losses, tax carryforwards, or tax liabilities not yet paid (whether related to joint returns or separate returns), these may be considered in divorce. Similarly, tax refunds not yet received, or tax liabilities not yet paid, are also fair game.

 

Lottery Winnings. If you or your spouse hits the lottery, the winnings would be up for conversation on whether to divide.

 

Cash or Safe Deposit Box contents. Think you can salt away cash or jewels in a shoebox or safe deposit box and escape dividing it with your spouse? Think again. Cash, jewels and other valuables are divisible in divorce. If you fail to fully disclose these assets or interests on your Financial Statement, you can be prosecuted for perjury, and forced to divide the assets anyway. In addition, you may end up paying costs and attorneys fees of your spouse as a result of a misrepresentation by you, or attempt to conceal. Being forthright in your financial disclosures actually helps to protect you against a claim in the future made against you.

The attorneys at Ryan Faenza Carey will assist you in identifying all assets and liabilities relevant to a division of property in your divorce proceedings. Contact us today!

Dealing with divorce and protecting your children at the same time

It is not uncommon for a divorced or divorcing individual at some point in his or her life, either during or after divorce, to try and “erase” the past and start again; to pretend that the past hasn’t happened and try to chart out a new course for the future avoiding history as it occurred. In circumstances where no children are involved, this new course or direction may occur without too much collateral damage; however, if children are involved, it can be devastating.

 

Sometimes, a parent can actually take this effort too far, in the process emotionally or physically distancing him/herself from a child as well. That parent may stop seeing or being as involved in the life of their child(ren), and oftentimes financially withdraws support for them as well. For parents who had previously been involved in the child’s life, that can cause incredible trauma. This is a heartbreaking situation for everyone—the departing parent, the available parent who must try to compensate, but especially for the child who will bear the scars and endure this heartbreak for the rest of his or her life.

Here’s the bottom line: The decision to be a parent is permanent and irrevocable. The decision to have a child carries with it multiple responsibilities, not the least of which is providing love, emotional support, financial support and guidance to the child. These responsibilities are not something which a parent can later “undo” or “quit”—parenting is forever.

 

All parents matter, and the best interests of the child should be considered paramount.   The responsibilities of parenting should be borne by the adults who brought the child into the world, and not by the innocent child. If you find yourself struggling with divorce to the harm of your child(ren), there are many resources you can seek including counseling to help avoid long-standing emotional harm on your family.