Over the years, I have helped many of my clients, friends and acquaintances receive social security benefits from a divorced spouse they had no idea they were entitled to (this applies to a present spouse as well). Here is what you need to know–that social security isn’t going to necessarily tell you—unless you ask.

If you were married for 10 years or longer, you have a choice of receiving benefits under your own work record, or one-half the benefit under the work record of your former spouse, even if your former spouse has remarried. The benefit under your former spouse’s work record may be higher than your own.

If you receive benefits under your former spouse’s work record, it has no effect on the benefits your former spouse or his/her new spouse receives.

If you were born before January 2, 1954 and have already reached your full social security retirement age, you can receive benefits under your ex-spouse’s record, while delaying and growing your own social security benefit. You can then switch over to your own benefit at a much higher amount later on.

If your former spouse is deceased, you may be entitled to social security survivor benefits.

What do you have to lose? Social security benefits are a substantial retirement benefit. You (and your former spouse) have undoubtedly paid significant social security taxes over the years. Get what your entitled to. Make an appointment without delay and find out your rights. Ask questions. You have a right to know.

What is a prenuptial agreement?

In Massachusetts, you are free to contract with your fiancé about what your marital rights are in the event of death or divorce.   Effectively this means prior to marriage you and your spouse plan out what happens if you divorce or die.  While this forces a happy couple to have difficult discussions prior to marriage, it can be a positive experience for the couple. 

Prenuptial agreements are popular for individuals who are remarrying to preserve an inheritance for their children of a previous relationship.  They are also useful in preserving family wealth or wealth accumulated prior to the marriage.  However, prenuptial agreements are also beneficial for practical couples who want to discuss their financial expectations.

Can my fiancé and I hire one lawyer to draft the prenuptial agreement?

When a party signs a prenuptial agreement, he or she is waiving certain legal rights.  Each party should have the opportunity to consult with a lawyer to understand how the prenuptial agreement will impact his or her rights in the event of divorce or death during the marriage. 

If you choose to hire an attorney to draft the prenuptial agreement, that attorney cannot also represent your fiancée as it would be a conflict of interest.   Best practice would be for your fiancé to hire a lawyer to independently review the prenuptial agreement to ensure it is fair and reasonable and conforms with your fiancé’s goals and understanding.   

Massachusetts does not require that you and your fiancé be represented by attorneys; however, it is strongly advisable to do so to increase the likelihood that your prenuptial agreement will be enforced. 

Wait, could my prenuptial agreement not be enforced?

Whether a prenuptial agreement is enforced is determined by a two-step analysis.  First, the court looks at whether the agreement was fair and reasonable at the time it was signed.  The court considers a series of factors to determine what is fair and reasonable, including how soon the agreement was signed to the date of marriage.  A word of caution is to make sure you begin having discussions with your fiancé about creating a prenuptial agreement as early as possible.  The closer to the date of marriage, the greater risk you take in the agreement not being enforced.

Second, the court looks at whether the agreement was ‘conscionable’ at the time of enforcement, meaning is each spouse left with adequate means and employment to support himself or herself after divorce.   

Massachusetts also requires that the parties make a full and truthful disclosure of their financial situation before signing.  Make sure you allow for ample time to gather and exchange financial information with your fiancé.

If you are considering a prenuptial agreement for your upcoming marriage, call Ryan Faenza Carey as soon as possible.

When you’re interviewing with a divorce attorney, you should make sure that all your questions are answered to your satisfaction.  Write down your questions ahead of time so that you don’t forget them when you meet with the attorney.

Questions to ask your divorce attorney should include the following:

  • Cost.  How much do you believe my divorce will cost?   What is your hourly rate and the rate of others in the firm that might be working on my case? How will I be charged and billed? What is the amount of your retainer to begin the case?
  • Recommendations.  What is the course of action that you recommend I take and why?  What step or steps should I take now, if any, to protect myself (or my children)? Is there anything I should not do?
  • Options.  Do you offer limited assistance representation?  What should I know about mediation, collaborative law, conciliation, arbitration and other forms of alternative dispute resolution?
  • Outcome.  What can I reasonably expect in terms of a range of outcomes—on property division, support, custody and parenting, health insurance, life insurance, etc. What is a realistic time frame to reach an end result?
  • Settlement v. Trial.  What is the likelihood of my case being settled by agreement without a contested trial? What is the percentage of your divorce cases that are ultimately settled by agreement? (this should be quite high) Are you prepared to try my case in Court if a settlement cannot be reached?

–     Experience.  How many years of experience do you have in representing clients in divorce and family law matters? How many clients have you represented in  divorce cases from beginning to end?

  • Approach/Philosophy.  What is your general philosophy or approach in these types of matters, and in my case in particular? (make sure you agree with his/her philosophy or approach).

You have a right to know, and should receive satisfactory answers to all of your questions.  Let your attorney know your priorities and wishes so that you can understand how to achieve your goals.  We at Ryan Faenza Carey believe our clients have a right to transparency, and to full and open lines of communication.   

What is a contempt action?

Contempt actions deal with a party’s failure to comply with a clear or unequivocal order or judgment of the Court.  A contempt action can be civil or criminal in nature, although most contempt actions in the probate and family court are civil in nature.  Your spouse or ex-spouse can file a Complaint for Contempt against you if you have failed to obey the terms of any court order or judgment.  A Contempt Judgment can have serious consequences to you, including paying interest, paying the other party’s legal fees, or jail time.

How to avoid contempt

#1 – Do what you are ordered to do

First and foremost, you should periodically read through any orders or judgments to ensure that you are doing what you are supposed to be doing and to be mindful of any upcoming deadlines.  Failure to pay child support is a common reason someone files a Complaint for Contempt.  If you are found in contempt for failure to pay child support, you could be ordered to pay the other parent’s legal fees, have your wages garnished, or spend time in jail.

# 2 – Be cautious about informal agreements

Sometimes when a person falls into hardship and is unable to meet a financial obligation, he or she makes an informal arrangement with his or her ex-spouse to reduce payments.  If the arrangement is not reduced to a signed writing and approved by the Court, then the arrangement will not necessarily relieve you of your obligation under the prior order or judgment.  The Court may determine that you violated an existing order despite an informal agreement to the contrary. 

#3 – Seek a modification

If you cannot comply with the terms of an order or judgment, you should seek a modification to change the terms before a Complaint for Contempt is filed.  Although, your inability to pay may be a defense against a contempt action; you will incur costly legal fees in defending the contempt.  The best defense is sometimes a good offense.

#4 – Show up for all court appearances

If a Complaint for Contempt is filed against you, then you are required to appear in court for a hearing.  A common mistake is not knowing that the “return date” on the summons is an actual hearing date.  If you are unsure about the date and time of the court hearing you should contact the court immediately.  Failure to show up for the court hearing could have serious consequences, including the judge finding you in contempt, jail time, or unfavorable decisions in your legal matter.

#5 – Call your attorney

If you believe that you may be in violation of an order or judgment, you should contact an experienced divorce and family law attorney.

It’s important to find a lawyer that’s right for you. Although there are still some “general practice” attorneys, most attorneys and firms concentrate their practices in one or more fields of law.  Not every lawyer is proficient in every area of law.  Much like the medical profession, you probably wouldn’t see a podiatrist for a problem with your heart, and you probably shouldn’t see a medical malpractice lawyer for a divorce. 

Ryan Faenza Carey concentrates its practice in divorce and family law, real estate, and some probate and business matters. If we can’t help you, we will help you find someone who can help you.  We consider it part of our responsibility to help clients calling about other types of law outside our fields of expertise to connect with an attorney outside our firm who we believe would serve them well.  Frankly, it is easier for us as attorneys to utilize our network of colleagues to make a referral to another lawyer or lawyers than it is for clients to find an appropriate attorney themselves.

In making a referral to an attorney outside our firm, we take into consideration:

  • The client’s legal needs
  • The reputation, skill and specialized field(s) of the attorney as one that would meet the client’s needs
  • The personalities/style of the client and the referral attorney
  • Geographic considerations (where the client lives and where the attorney practices)
  • Budgetary considerations
  • Any other requirements/requests that the client may have

Call Ryan Faenza Carey for assistance, whether you need the assistance of one of our seven attorneys, or an attorney outside our areas of expertise. We would be happy to guide you.