Think that dividing assets in divorce is easy and anyone can do it?  Think again.  You may be risking thousands or tens of thousands of dollars if you forget to dot the “i’s” and cross the  “t’s”.  A recent Boston Globe article highlighted the Court case of former Patriots running back Mosi Tatupu. His case underscores the importance of careful and timely drafting and consistency in dividing assets in a divorce. It also illustrates how important it is to fully understand the terms of your settlement.

What Mosi Tatupu’s widow thought she was getting from her former husband’s NFL pension, and what she ultimately got, were two different things. The provisions of the parties’ divorce Separation Agreement, and the court-submitted document dividing the pension (DRO) were inconsistent. After Mosi’s death, his former wife sought to enforce terms of a DRO to divide the pension, and a federal Court in Massachusetts denied her claim.

The division of pensions and other assets in a divorce is complex and should be handled by an experienced professional.  It is essential that you know and understand your rights, as property division provisions are usually final.  Insist on having your rights explained to you and leave nothing to chance; it is unlikely at best that problems with property division can be rectified after the fact. 

We at Ryan Faenza Carey have seen first hand the difficulties and problems that arise in cases such as Mosi’s, among others.  These difficulties and problems can mean the loss of thousands or even millions of dollars down the road.  Consult with one of our experienced professionals.

A divorce can feel like a liberating experience once legal proceedings are finalized. Many people leave our office for the last time with the feeling that the past is behind them, and nothing but opportunities for the future await. They don’t expect to have to deal with any more court or legal proceedings. 

Nevertheless, here are some post-divorce considerations we share with all of our clients to ensure they are avoiding additional legal headaches down the road:

Don’t Forget your Agreement Terms:

It is good practice to periodically read throughyour Agreement or Judgment after the divorce to carry out the terms of the divorce. Typically, parties often forget some of the terms of the final orders. There are probably provisions concerning splitting up the assets, who takes the dependent exemptions for the children, life insurance you may have to establish or verify, provisions regarding payment of uninsured medical expenses for the children, or other things to be done to carry out the agreement reached.

Make sure you’re legally divorced before remarrying

Be sure to wait until the Judgment of Divorce Absolute—the final judgment—before you remarry. This is the formal document that recognizes you as legally single in the eyes of the law.

Consider a Prenuptial for the next one

If you do remarry, a prenuptial agreement can save you a lot of headache by determining in advance what should happen if your subsequent remarriage ends by divorce or death.

Be aware of your right to modification

If circumstances of the parties or children change, you may want to explore a modification– a  change in the Court orders—typically these changes concern support, parenting schedule, medical insurance, life insurance triggered by changes in income, job, or changes in parenting schedules.

You may have to involve the court if orders aren’t followed

If your former spouse doesn’t obey the Court orders, you may need to explore a contempt proceeding—to enforce the Court orders.  Typically this involves failure to divide pensions or retirements, failure to pay support, etc.

Laws change- and this can affect your agreement

Sometimes laws change and can have retroactive effect.  Periodically explore whether or not any changes in the laws may affect you.

You should plan ahead

Put together a post-divorce estate plan—to insure that your wishes are carried out the way you want them to be carried out in the event of your death.  

Get creative with social security

When it is time to consider collecting social security, remember that your previous marriage may allow you considerable options of collecting under your work record, or that of your former spouse, or a combination of both, in order to best maximize your benefits. 

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. 

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!

1. Don’t make an offer without a preapproval from a mortgage lender. A seller might not even consider your offer if you do not have a preapproval. A preapproval shows a seller you are serious, and that you are creditworthy. It also provides you with an idea of what you can truly afford to pay as a monthly mortgage payment, so you won’t waste your time looking at houses you cannot afford.

 

2. Have an attorney early on in the process. Most buyers don’t realize that in Massachusetts, the “offer” is a binding contract entered into before you sign a binding Purchase and Sale Agreement. There are important terms and dates that are contained in the offer such as the date by which you must secure financing, and the date of the closing. Generally, these cannot be changed in the Purchase and Sale Agreement. Consult a lawyer as you begin your home search to ensure s/he assists you in determining things to include in your offer.

 

3. Don’t forget to specifically inquire about the extra costs of owning the home you are interested in, such as fuel, energy, trash removal, and such. These costs can add hundreds of dollars monthly to the cost of living in your home. For example, a home with electric heat can add $300-$700 a month in the winter months if the house is in a cooler climate.

 

4. Do not assume what is included or excluded in the sale as far as appliances and fixtures. Make sure your offer specifies what you want to be included in the sale such as appliances, window treatments, and blinds, and what you want removed from the house.

 

5. Don’t assume you can just work with the realtor who listed the house. A home sale transaction can involve one or two realtors; A realtor who lists the home (listing realtor) and one who works with the Buyer. Although a listing realtor can successfully complete a sale leaving both Buyer and Seller happy, to ensure your desires are understood and your needs are satisfied, find a realtor to work directly with you.

Here at Ryan Faenza Carey, whether you are buying, selling or refinancing a property, we can help. Call Attorney Anne Marie Corraro for assistance at 508-668-9112.