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.

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 through your Agreement or Judgment after the divorce to carry out the terms of the divorce. Typically, parties 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. 

If you are going through a divorce or preparing to file, the best thing you can do is to limit or stop yourself from posting on social media, especially photographs.

This is increasingly important as we are confronted daily with new social platforms and smartphone applications. We live in an age of constant written communication and sharing (i.e., iMessage, WhatsApp, Google Hangouts, Facebook Messenger, Instagram, Twitter, etc.).

Today we have the ability to share our every moment – the good and the bad. It is easy to become excited and share personal or professional accomplishments and announcements. You may have the urge to voice concern or frustration about an issue that is personal or not in nature.

Before you reach for your smartphone, stop and think.

What you perceive as acceptable may have harmful consequences to your case. Remember, a social connection is a connection and not necessarily a “friend.” A connection may share your post with your spouse. So even if blocked, your spouse might obtain your posts and photographs and use them as leverage in negotiation against you, or in court to damage your credibility and challenge your fitness as a parent or ability to work.

Be mindful that anything that you write, post, tweet, or share could be used as evidence against you in court, even if you think your previous posts were deleted or hidden. It is possible to recover deleted posts or for an individual to take a screenshot. Do not be fooled by apps such as “Snapchat” in believing the picture you sent will disappear after a few seconds. The recipient can save the image with a screenshot and possibly show it to a judge.

If you must use social media, then you need to exercise discretion and good judgment in what you share and put in writing. The general rule of thumb is “when in doubt, don’t.”

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.