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Showing posts from March, 2010

Congratulations On Your Divorce; Time To Update Your Estate Plan

The following is a guest blog post written by our colleague Danielle G. Van Ess, Esq. of DGVE law, LLC in Hingham, MA.

You might be surprised how many of my new estate planning clients realize, after we’ve talked a little, that their ex-spouses are still named as the primary beneficiary of their life insurance policies or, more often even, their retirement accounts. And given the value of those assets, their reactions in that moment of realization are far less surprising. If you are divorcing or divorced, you need to ensure that you have changed the beneficiary of those and other pay on death type accounts.

And given that you will no longer be sharing your life with your ex-spouse, it’s likely you won’t also want him or her to be the one to speak for you in the event of your incapacity or be the one to make medical decisions for you, including whether to discontinue life support, if you are ever unable to do so yourself. So if you already had such estate planning documents in place (…

Alimony Reform Recommendations

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

The Boston Bar Association has unanimously voted to endorse the Report of the Joint MBA/BBA Alimony Task Force: Alimony or Spousal Support Guidelines where there are no Dependent Children.

The Report recommends an alimony cap based on a formula. It also recommends durational limits on alimony and lists specific instances where the recommendations would not apply, such as cases where the recipient is so disabled as to become a ward of the state.

The Report also allows for deviation based on certain factors, which include cohabitation.

As indicated in a previous Alimony debate post, this is the type of reform that we believe would be an improvement over the current state of alimo…

Can Assets I Owned Prior to the Marriage be Divided in a Divorce?

The short answer is YES! Whether or not they are divided will depend on a number of factors.

For divorce purposes, Massachusetts gives very broad definition to "marital assets". Absent a pre-nuptial agreement every asset and liability owed by either party is considered by the Court in a division. The Court can consider the source of the asset but that is just one of the factors in whether or not to divide it. Under M.G.L. ch. 208 § 34, the Court can assign alimony or division of property based on the following section:

"In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the oppo…

Where you get Divorced matters! - British woman loses rights to £1.2 Million Pension

Every state (and every country) has standards for jurisdiction that decide whether or not you can bring a divorce case to their courts.

Where you can file for divorce is an important question because the laws of the state or county where you will file will control how your divorce case is resolved, and those laws can differ significantly. A British woman was recently denied access to file divorce in the United Kingdom courts because her and her Husband last lived together in France. According to The Daily Telegraph, this decision will result in her losing any rights she might have had to her Husband's £1.2m pension.

The laws can also differ greatly by state. In Massachusetts, for instance, the court can consider potential inheritance as an opportunity "for future acquisition of capital assets and income" and award alimony or assign property to one spouse or the other based on that consideration. In many other states inheritance or potential inheritance cannot be cons…

Since we have No-Fault Divorce, how about No-Fault Custody?

A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.

This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.

I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life…

Can you Go to Jail for Bringing Your Child to Church?

Getting divorced doesn’t always mean the end of a relationship. When parents of a child get divorced, there is a need for some form of continuing communication and cooperation. When parents fail to recognize that need for ongoing cooperation, the child is the one who suffers.

The latest example of parents putting their child in the middles is the story of Joseph and Rebecca Reyes as reported in this ABC news story:


Joseph Reyes returned home from serving in Afghanistan and soon married his sweetheart, Rebecca. Because Rebecca is Jewish and Joseph was Catholic, Joseph converted to Judaism to make his wife, and her family, happy. After a few years, and the birth of a daughter, their marriage had started to deteriorate.

Religion became a contentious issue between the two, and they decided to get divorced. Rebecca became the daughter’s custodial parent, and Joseph had visitation rights. Although Rebecca had been raising their daughter in the Jewish faith, Joseph unilaterally decided …