People are often confused by  the meaning of a “contested or uncontested divorce.”  The two are not mutually exclusive.

CONTESTED OR UNCONTESTED

“Contested” usually means the parties cannot agree on financial support, how to divide the property or assets and the parenting plan for their children.  Until the issues are decided, the case remains “contested” in the sense that there are still undecided issues.  Most divorces that start out “contested” usually end up becoming uncontested once the disputed issues are resolved.  The filing of a “Complaint for Divorce” does not mean that the parties will never agree on all of the issues between them.  Most divorce cases end with agreement of the contested issues (the Separation Agreement.)

FILING FOR DIVORCE

“Filing” for divorce does not mean the process cannot move forward in an friendly manner and stay out of court.  Filing for divorce may get the process started and begin the efforts to end the marriage.   An individual does not have to “decide” in advance whether they want to opt for a “contested” or an “uncontested” divorce.  These are merely words used to describe what is occurring.  Very few divorce cases end up “contested” at the end of the day.  The few cases that remain “contested” may be forced to have a trial at great financial expense and emotional cost.  Going to trial should be avoided if at all possible.

STRIVE TO RESOLVE

Work hard to settle the disputed issues. Consider compromise to bring financial and emotional savings for the family.  Do your best to put aside some of the accumulated marital knowledge that may be holding you back from resolving  contested issues.  Realize that even a “bad” settlement is better than a “good” trial, because there is predictability, closure and financial and emotional savings for a couple and their children.  Have “uncontested” be the ultimate goal for you and your family.

Minor children and guardianship issues have been in the news lately.  Guardianship is a legal process for a child who is

  • under eighteen and not under a parents’ care,
  • or has been removed from the care of a parent or parents.

The guardian takes on the role of a parent in providing a stable home and making everyday decisions about a child’s health, education, and safety.  This process is accomplished through the Family and Probate Court in your county.

Petition for Appointment of Guardian

Paperwork or the “Petition for Appointment of Guardian” must be filed and the parent or parents made aware of the Petition, even if the parents consent to the appointment.  This must be completed in order for a guardian to be selected and appointed.  (There is no filing fee for this process.)  Monetary support may be received by the Guardian as determined by the Court.

A child age 14 or older is given special consideration in Guardianship cases, as the child will be involved in the process and may select the Guardian.  A 14 year old child or older, must receive copies (be “served”) of the Petition and other filings sent to the Court.

Parents may receive a ruling from the court that the guardianship is “permanent.”  This determination can be changed.  A parent must demonstrate to the Court that a “change in circumstances” has occurred and the Parent is now fit to care for the child.

There is no doubt that this process is stressful for anyone involved.  The attorneys at Ryan & Faenza can help guide you through the procedure and help you reach final resolution.  508-668-9112.

If you are about to divorce,  consider whether there is any back support or other monies due you from your soon-to-be former spouse.

Temporary Orders are extinguished upon entry of a Judgment of Divorce.  If there are any arrears in support, or other monies due you, they must be  preserved in your Divorce Agreement or Judgment; otherwise, they will be lost.

Do not rely on a Court order issued during the pendency of a divorce proceeding to collect on unpaid monies.  Prior to signing your Agreement, or presenting your case at trial, insure that there are provisions made, or evidence submitted, regarding any unpaid  monies due you.

Getting married? Concerned about avoiding some of the financial nightmares you read about in case your marriage is one that ends in divorce?

Be careful about gifts or loans from family.  If your family is going to gift or lend you $30,000 for a down payment on that house you and your spouse are buying, you should consider protecting that money so that half of it doesn’t end up with your spouse in the event of divorce or death.  Most families would never choose to have “family” money end up in the hands of their child’s estranged spouse, but you are taking that risk with your family’s money when you receive gifted or loaned money without documenting that intent if there is a divorce or death.

If you plan to be an “at home” parent raising the children, think carefully about the financial impact of this decision.  If you and your spouse divorce, your rights and financial lifestyle may now be significantly diminished by the recent alimony reform law.  Even if you are a dependent spouse without any earning capacity, you may be on your own financially if you cohabit with someone after a divorce.  You are likely to be on your own financially when your former spouse reaches social security retirement age (even if he or she continues to work).  If you are an alimony candidate by virtue of having stayed home to raise the children, your standard of living will be less than your former spouse’s; you can count on that.  Assets you receive in the divorce may be the only source of income to fund your retirement.

Consider a prenuptial agreement.  If done correctly and timely, you and your spouse can decide what should happen in the event of death or divorce, rather than having the outcome dictated by whatever laws controlling estate rights and divorce rights are in place at the time of the dissolution of your marriage or death.  The above problems, and many others, can be cured by the execution of a Prenuptial Agreement in advance of the marriage.  Fairness can often be achieved more successfully during a time of engagement when parties are blissfully happy rather than after a divorce has been filed and the couple has split up.  Deciding financial expectations in advance can have a positive effect upon the relationship and contribute to marital harmony if done effectively.

Divorce Words 103

As part of the divorce process the ideal and final goal is to reach a resolution of all issues and create a document called the “Separation Agreement.”  Some of the important words used when completing the divorce are listed below.  Reaching an agreement is generally preferable to litigating the matter in Court, where the result may not be predictable.

Alimony or Spousal Support

Massachusetts has four types of alimony that may be awarded to either spouse in a divorce action; General Term, Rehabilitative, Reimbursement and Transitional.  Your attorney is the best one to advise you on the type of alimony, if any, which may or may not be available or recommended.

Child Support

Massachusetts has Child Support Guidelines (periodically updated) that are calculated using a Child Support Worksheet.  The Guidelines are meant to standardize the many variables involved in child support.  Deviations from the guidelines may be available for unusual situations if justified by the facts of the case.

Custody

Custody generally refers to the legal relationship between a parent and minor child.  Custody is often divided into two types, Legal and Physical.  It is best to look directly at the statute governing custody of children to understand each definition (Massachusetts General Laws, Chapter 208, Section 31 governs custody).

Legal custody may be sole or shared.

  • “Sole legal custody”, one parent shall have the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.
  • “Shared legal custody”, continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.

Physical custody can also be sole or shared.

  • “Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation[1] by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
  • “Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

Parenting Plan

The determination of the type of custody for minor children as well as specific details about where children will be on school days, weekends, holidays and vacations is set forth in the part of the Separation Agreement called the Parenting Plan or Parenting Schedule.

[1] Currently Judges generally prefer the term “Parenting Plan” rather than visitation.