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Showing posts from 2011

I Just Got Divorced, How Do I Change My Name?

While there is a separate Petition for Change of Name in the Probate and Family Court, you can also change your name pursuant to a divorce judgment if your name change happens to be due to a divorce. There is a $150 filing fee plus a $15 surcharge for filing of a Petition for Change of Name. Technically there is only a $100 fee for changing your name pursuant to a Divorce Action, but this fee is seldom enforced.

If you are not sure if you want to resume a former name during a divorce you may still change your name later by filing a Petition for Change of Name with the court, starting a new court case specifically for that purpose.

Whether you change your name pursuant to a divorce case or pursuant to a Petition for Change of Name, there are some important logistics that you should be aware to record the name change with various agencies and organizations.

The court will not contact the Social Security Administration on its own. You will need to obtain a certified copy of your …

Modification under the Alimony Reform Act of 2011: Updated Flowchart.

UPDATE: The SJC reached a decision on 1/30/2015 on three cases that interpreted the modification provisions of the Alimony Reform Act.  The SJC disagreed with our interpretation below and decided that the provisions on retirement age and cohabitation can not be read retroactively.  To read more on these decisions check out our post here: Lifetime Alimony is Back (for some)! - Chin v. Merriot.  To see an updated flow-chart on modification visit this post: Can I Modify my Alimony? Updated Flowchart.

Original Post:

The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011. You always have the ability to reach an agreement for modification, but in the event that you and your ex-spouse disagree about whether a modification order should be changed, this chart can help you figure out whether a court will change your order.

The new law becomes effective March 1, 2012 but to p…

It's Our First Holiday Season After the Divorce: How Do We Make It Easier on the Kids?

The holiday season is usually thought of as being a time to exchange gifts with loved ones, and gathering with friends and family. For families transitioning through a divorce or separation, the holidays can mark a melancholy season. What once was a time to spend with family has now taken on a new form.  For divorcing or separated couples with children, the holidays are now a time where the children are being shuttled to and from different parents' homes instead of spending the whole time with both parents together.

While we are not therapists, we recognize the stress that is unique to divorcing couples with children. Family therapist Carleton Kendrick, Ed.M., LCSW, wrote on Family Education's blog about how parents can approach the first separate holiday season with their children. Below is his advice and highlights:

Show them you understand their feelings and worries: "I know you're going to feel sad sometimes this Christmas and maybe a little angry and worried …

Should I Sign My Divorce Agreement?

Many individuals come to our office having gone through mediation with their soon-to-be-ex-spouse, asking us to review the separation agreement that they have negotiated. Whether we ultimately advise a client to sign a proposed agreement or not depends on the contents of the document and the individual's particular set of circumstances,

1. Has the marriage been irretrievably broken down with NO CHANCE OF RECONCILIATION?
2. Does the Agreement completely resolve all issues relevant to the marriage in a fair and reasonable manner?
3. Is this an agreement that you can live with?

In the end, it is not our life but yours, and the divorce agreement will govern some important aspects of your life in the future, especially when there are children involved. Being able to "live with a divorce agreement" means not only being happy or satisfied with it, but also being able to perform any of the agreement's obligations. If the agreement is not something that you can live with,…

The Financial Statement and the Importance of Honesty

As part of any family law case in Massachusetts (including divorce, paternity, child support, modifications, etc.), Massachusetts Supplemental Probate Court Rule 401 requires that each party file a complete, true, and accurate financial statement. For individuals earning less than $75,000 per year, their financial statement is the "short form." Individuals earning more than $75,000 are required to fill out the "long form."

A surprising number of individuals don't take the financial statement seriously, only to be surprised when their financial statement is scrutinized by the opposing party or the judge. When we receive a financial statement prior to a court hearing, we compare the income versus the expenditures, as well as to any previous financial statements. In addition, we review whether the opposing party has listed items such as interests in trusts and businesses, digital assets, patents, valuable collections, and whether the reported income is consiste…


California Attorney Mark B. Baer started another great discussion on a LinkedIn group I belong to entitled:

The answer is yes, and here were my comments in response to this discussion:
In Massachusetts the standard for a no-fault divorce is irretrievable breakdown and the party (or parties) requesting the divorce must testify under oath that their marriage has irretrievably broken down with no chance of reconciliation. Whenever I provide an initial consultation, I ask that question very seriously and slowly, emphasizing the "no chance of reconciliation." In many cases it is clear that the potential client hadn't considered their desire for a divorce from that standpoint, and in many cases they have difficulty stating that there is no chance of reconciliation. 

Because of the hesitation that so many potential clients show, I always inform them that I am not…

Visit the Office of the Future in the World of Tomorrow!

Thanks to FirmFuture presenter Gabriel Cheong for inspiring us to make better use of our iPad in the office.

Now when you schedule an initial consultation we can use our iPad, displayed on the flat screen TV (pictured above), to show you:

how to calculate Child Support or Alimony onlinehow to create Parenting Plans onlinehow calculate the cost of Bankruptcy onlineor evaluate the length of time a Bankruptcy will take online.
And if you want any of the information printed out so you can take it home, our new laser HP printer can print directly from the iPad right in our conference room, using WiFi magic.

These are just some of the ways that we are trying to design our new office, at 160 Speen St, Suite 202, Framingham, MA, to be as friendly, convenient and useful to current or potential clients.  If you are interested in checking it out, give us a call at 508.655.5980 or set up an appointment online here.

Is my iTunes Account a Marital Asset?

In Massachusetts, everything that either party to a divorce action owns or owes, regardless of whether it was acquired during the marriage or not, is subject to division in a divorce case. How it might be divided is a different question, but in order for that evaluation to happen, all assets and liabilities must first be disclosed. Massachusetts requires individuals involved in divorce cases to submit financial statements disclosing all of their assets and liabilities within 45 days of opening a divorce case.

The assets to be listed on a financial statement are to include everything. This includes the most commonly thought of assets, such as physical assets (artwork, automobiles, jewelry, houses, etc.) and financial accounts (bank, investment, stock, retirement, etc.). This disclosure should also include items which you might not think about as assets.

One example of an asset that many people don't typically think about is their frequent flyer miles, which was parodied in the

Does the Staggered Duration Formula for Alimony Mean that Lawyers Will Encourage Potential Clients to File for Divorce?

Hopefully not! However, it does make anniversaries more important than they already are.
Under the Massachusetts Alimony Reform Act of 2011, which becomes officially effective on March 1, 2012, general term alimony will now have a time limit, determined by the length of the marriage.

For marriages lasting 5 years or less, general term alimony will last no longer than one-half of the number of months of the marriage.For marriages lasting more than 5 years but less than 10 years, general term alimony will last no longer than 60% of the number of months of the marriage.For marriages lasting more than 10 years but less than 15 years, general term alimony will last no longer than 70% of the number of months of the marriage. For marriages lasting more than 15 years but less than 20 years, general term alimony will last no longer than 80% of the number of months of the marriage.For marriages lasting more than 20 years, the court may order that general term alimony will last indefinitely.


Does Reducing and Limiting Alimony Force Primary Caretakers into the Workforce?

When a child is born out of wedlock, either parent may initiate a court proceeding to establish certain rights and obligations that come with raising a child. Such rights include visitation, the ability to make significant life decisions for the child, and child support. The purpose of child support is to provide a measure of financial security for a child from a parent that might not be living with the child full-time.

When a child is born into a marriage that later dissolves, child support may be ordered, and usually is. The purpose of child support for children born into a marriage, or out of wedlock, is identical: to provide for the financial costs of raising a child.

However, when marriages dissolve, the finances of the couple might be such that a court will order alimony as well. The purpose of alimony is to provide for the financial well-being of a former spouse. The issue of alimony always has been, and will likely always be, controversial. The rationale behind it is th…

You have been appointed as Guardian, do you need to be appointed as Conservator, too?

When an individual is determined to be incapable of making independent decisions necessary for proper management of his or her life, a guardianship is often necessary. The form, or limits, to the scope of the guardianship (meaning what management authority is being transferred from the "incapacitated" individual to the guardian) depends on the circumstances of the individual. A guardianship may be permanent, temporary, or limited to particular decision-making authority.

A guardianship does not provide for the authority to manage the incapacitated individual's assets, unless the incapacitated person's only assets stem from monthly income. In order to manage existing assets of an incapacitated individual, a conservatorship is necessary.

Under a conservatorship, the incapacitated individual may actually lose the legal ability to manage their bank accounts, enter into contracts, or accrue debt, so that the conservator is responsible for these responsibilities. A conser…

Is Alimony Always Tax Deductible?

Generally, alimony is tax deductible to the payor and taxable income to the recipient. The purpose of this tax treatment is to treat the alimony as a transfer of income from payor to recipient. However, there are requirements for alimony payments to qualify for this favorable tax treatment.

The IRS defines alimony as: "a payment to or for a spouse or former spouse under a divorce or separation instrument. It does not include voluntary payments that are not made under a divorce or separation instrument."

Agreements executed after 1984 have different requirements than agreements executed before 1985. For purposes of this post we are only going to discuss post-1984 agreements:

Under a post-1984 agreement, judgment, or order, alimony is only tax-deductible to the payor if the following requirements are met:

The parties file separate tax returns; The payments are in cash; The agreement, judgment or decree does not indicate that the payments are not alimony; The spouses are …

A Response to "What Triggers Violence in Custody Battles in the United States?"

A colleague in California, Attorney Mark B. Baer, recently wrote a post discussing some horrific and recent tragedies of domestic violence that have occurred during the process of divorce or child custody court cases.

Attorney Baer points out that our courts are not designed to deal with all of the emotions that come with a divorce, or a child custody dispute, and neither are most attorneys. Attorney Baer then posits a direct connection between these cases of violence in divorce or child custody disputes, and concludes that the family law system in the United States is to blame for that violence.

We respectfully but strongly disagree. The frustrating delays and other inefficiencies of the court system are not the cause of domestic violence. Abusers, making their own choices, are the cause of domestic violence.

The following response was written jointly by Jonathan Eaton, Esq. and Justin Kelsey, Esq. as a reaction to Attorney Baer's article:

Attorney Baer's post describes …

Self-Employment Income & Child Support: Massachusetts vs. the National View

We are pleased to link to an Article published by a colleague of ours, Jason V. Owens, Esq. of Stevenson & Lynch, P.C., in the June 2011 edition of the Suffolk Journal of Trial & Appellate Advocacy entitled Determining Self-Employment Income for Child Support Purposes: the Massachusetts View Compared with the National View. The article focuses on the thorny problem of calculating “income” for child support purposes in cases involving self-employed parents who operate a business over which the parent exerts financial control.

Much of the article explores the differences and similarities between “business income”, as defined by federal tax law, and “self-employment income”, as defined by child support guidelines in Massachusetts and other states. Much of the impetus behind this “compare and contrast” approach is practical. Determining a business owner’s “income” for child support purposes almost always begins with an examination of the business’s state and federal tax returns. …

And It's All Your Fault! MA "Fault" Based Divorce #7: Impotency

This rarely-used ground for divorce illustrates why "no fault" divorces are heavily favored by modern practitioners. Judges are wary to turn the courtroom into a "Jerry Springer"-type environment. A divorce is an immensely personal transition. Given the social stigma of the word "impotency", there is a high risk that any divorce action citing impotency as its grounds will make it more difficult to come to any agreements with the allegedly impotent individual, and the courtroom could likely become a forum for uncomfortably personal critiques.

In a "no fault" divorce, the judge need only be convinced that there has been an "irretrievable breakdown" in the marriage with no chance of reconciliation. In practical terms, all that means is that one spouse needs to be able to tell the judge just that.

By contrast, in order to obtain a divorce citing impotency, the court needs to be satisfied that your spouse is incapable of having sexual i…

And It's All Your Fault! MA "Fault" Based Divorce #6: Adultery

Of the "fault"-based grounds for divorce in Massachusetts, adultery is probably the most complicated. Many individuals seeking a divorce wish to prove to the court that their husband or wife cheated, and therefore was not a good spouse. This certainly affords an opportunity for those seeking to air their soon-to-be ex-spouse's dirty laundry, even requiring the paramour to be named as a co-defendant. However, it requires proving the existence of an extra-marital affair, and finding out all of the details of an affair could be more hurtful than helpful to the faithful spouse.

Further, the defense of "condonation" has the potential to defeat a complaint for divorce based on adultery. In essence, this defense claims that the faithful spouse forgave the unfaithful spouse, and should be prevented from now seeking a divorce based on adultery. For example, let's say that Pat is married to Alex. Pat has an affair with someone at work. If Alex can prove that Pa…

Upcoming Seminars and Workshops: Social Security, Estate Planning, and Divorce

The friends of Kelsey & Trask, P.C. are offering some great upcoming seminars and workshops to help members of the public understand their options better when it comes to legal issues. From time to time we will try to let you know about these opportunities. Here are three that we recommend in November:

Social Security and Retirement Planning: Social Security Workshop at Council on Aging

Concord, MA - Senes & Chwalek Financial Advisors is pleased to present Kurt Czarnowski, former New England Regional Communications Director for the Social Security Administration, who will present “Social Security and Retirement Planning” at the Concord Council on Aging on Monday, November 28, 2011 at 6:30 pm.

Social Security's retirement program has been a basic part of American life for more than 76 years. Because we're living longer, healthier lives, we can expect to spend more time in retirement than our parents and grandparents did, and achieving a secure, comfortable retirement is …

And It's All Your Fault! MA "Fault" Based Divorce #5: Refusal to Provide Suitable Support

Technically, one can seek a divorce from a spouse by pleading that their husband or wife has "grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance." This ground for "fault" divorce has a companion action: an action for separate support. However, a complaint for separate support only deals with support payments, and does not provide for the division of assets and the dissolution of a marriage, as this rarely-used ground for divorce does.

This ground for "fault"-based divorced is rarely used for a few reasons. First, there is no advantage gained when compared to a "no fault" divorce. Second, proving that your spouse has either grossly or wantonly and cruelly not provided suitable support is a very difficult. Simply putting one spouse on a very limited allowance or refusing to allow access to bank or credit card statements doesn't meet this evidentiary burden. You also have to prove that the spous…

And It's All Your Fault! MA "Fault" Based Divorce #4: Intoxication

In order to prove this "fault"-based ground for divorce, you need to convince the court that your spouse has "gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs." The potential benefit of filing for divorce on this ground is to highlight the issue of drug or alcohol use which could also be relevant to any custody arrangement for children.

This is not to say, however, that a court would treat a case filed on "no fault" grounds any differently if one parent has an addiction that might affect his or her ability to care for the children. If custody is contested, the court will have to look at both parents to determine what is in the best interests of the children, regardless of whether the case if filed as a "no fault" divorce or a "fault"-based divorce. Because of this, along with the difficulty of proving a "gross and confirmed habit of intoxication,"…

And It's All Your Fault! MA "Fault" Based Divorce #3: Imprisonment

This "fault"-based ground for divorce goes hand-in-hand with a finding of "guilty" in a criminal matter, followed by a sentence of five years or more in prison. It is not the amount of time that is actually served, but rather what the sentence is that matters. Proving this grounds for a fault divorce is generally straightforward.

Interestingly, if after a divorce, the imprisoned spouse is pardoned for his or her crime(s), the marriage is not restored.

As with most grounds for divorce, there is no advantage over "no fault" divorce. Proving that a spouse has been sentenced to five or more years in prison is slightly more difficult than meeting the evidentiary burden required in a "no fault" divorce (only that one spouse is able to tell the court that his or her marriage is irretrievably broken down with no chance of reconciliation).

And It's All Your Fault! MA "Fault" Based Divorce #2: Desertion

Desertion is one of two "fault"-based grounds for divorce that is used with some regularity in Massachusetts (the other being cruel and abusive treatment). In order to prove desertion, you need to be able to show that your spouse voluntarily left home without justification at least one year prior to filing the complaint for divorce, and has no intention of returning home. The spouse seeking a divorce needs to be able to testify that, during the one year period after his or her spouse left the marital home, there was hope of reconciliation.

Service of the complaint where personal service by a constable is impossible (because the location of the deserting spouse is unknown to the deserted spouse) is accomplished by publishing notice of the divorce case in a newspaper located in the location where the now-missing spouse was last known to reside.

The advantage of pleading "desertion" over a "no fault" divorce is that the act of deserting could warrant an uneq…

And It's All Your Fault! MA "Fault" Based Divorce #1: Cruel and Abusive Treatment

Since August 2010, "no fault" divorce has been available in all fifty states. Prior to the creation of "no fault" divorce, an individual seeking a divorce would need to file and prove a "fault"-based ground for divorce, proving to the court that it was the other spouse's fault. This resulted in bringing an often already-contentious relationship into the adversarial forum of a courtroom.

"No fault" divorces shift the focus from who is at fault to facilitating the transition to life after marriage. Basically, the court cares about who gets what, planning for where the kids are, and whether there is a support order (child support or alimony), and less about whether the husband or wife ruined the relationship.

In Massachusetts, "no fault" divorce has been the law since the 1970s, and has become favored by judges and attorneys. However, Massachusetts does retain the following traditional "fault"-based grounds for divorce:


Can I Modify my Alimony under the New Law? - A FlowChart

UPDATE: This infographic has been updated for greater accuracy:
The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011. You always have the ability to reach an agreement for modification, but in the event that you and your ex-spouse disagree about whether a modification order should be changed, this chart can help you figure out whether a court will change your order.

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

<a href=''><img style='display:block; margin:0px auto 10px; text-align:center;cursor:po…

Infographic: The Alimony Reform Act of 2011 - Simplified

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

<a href=''><img style='display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 2000px; border-width:0px;' src='' alt='' title='Click for Full Graphic'></a>

Click here for more information about Alimony in Massachusetts.

How long does it take to get Divorced?

The length of time between the beginning of a divorce case and the completion of the case varies greatly. The shortest amount of time it can take you to get divorced is about 5 months, while the longest can be years (my longest case so far was almost 6 years). The variation is mostly due to how you choose to resolve your divorce case, and how much you and your spouse disagree about the division of assets or custody of children.

Variation due to Type of Case: Private Resolution v. Court

You and your spouse can resolve your case by settlement out of court in three primary ways:

Direct Negotiation: Either directly with each other, or though counsel, you and your spouse can negotiate a divorce settlement without going to court. If you can reach an agreement on all issues, then you will still have to present a written agreement to the court which details your agreement.Collaborative Divorce: If you cannot negotiate directly, and want to use counsel, the Collaborative Divorce process all…

The New Massachusetts Alimony Law in a Nutshell

As expected, Massachusetts Governor Deval Patrick signed into law the Alimony Reform Act of 2011 yesterday.

The new law, which becomes effective March 1, 2012, makes significant changes to alimony in Massachusetts. Here are just some of the changes:

The new law defines multiple types of alimony:

Types of Alimony Defined:

General Term Alimony: periodic payment of support to a recipient who is economically dependent.

Rehabilitative Alimony: periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment, completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment.

Reimbursement Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of compensating the recipient for economic or noneconomic contributions to the financial resources of the payor spouse, such as enabling the pay…

New Same-Sex Divorce Resource

In Massachusetts, same-sex marriage is a right, and that means, for some, same-sex divorce will follow. When the unfortunate happens, can same-sex spouses hire any divorce attorney? Do all the same laws apply to these couples?

You might think that the legalization of same-sex marriage means that these couples have all the same rights as opposite-sex couples, but you would be wrong.

Even in the Commonwealth of Massachusetts, the discriminatory laws and practices of the federal government and other state governments can cause legal problems for same-sex couples who are married here. In addition, because gay marriage is a relatively new right in the Commonwealth, we are still learning how the laws of divorce and separation will be applied to these marriages.

There is a new site dedicated to providing information about the specific issues involved in Same-Sex Massachusetts Divorce cases called: is a resource where same-sex spouses consi…

How do I serve Divorce Papers on my spouse (at Fenway Park)?

image from Globe Staff Photo / Barry Chin As Red Sox pitcher Erik Bedard recently found out, how your ex chooses to serve you with family court papers can be private or very public. As described by the New York Post, Bedard was served with a child-support case by a constable (who happened to be a Yankees fan) at Fenway Park before taking the mound for the Red Sox last week. Serving him at work was not required, but might be your preference if you're a Yankees fan.

What are the requirements for service of Divorce or other Family Court Complaints?

Whether or not you tell your spouse you want a divorce before you serve them with the divorce papers is a personal choice (covered by our previous post: How should I tell my spouse that I want a Divorce?). Once a divorce (or other domestic relations) action is begun, though, there is a legal process to ensure that the opposing party is properly served with the Complaint. The Court will provide you with a Summons which must be served on th…

Budget Cuts Force Many Massachusetts Courts to Close Early

Starting this past Monday, thirty-eight courts in Massachusetts began cutting hours for clerks and registers due to budget cuts, staff shortages, and backlogs. The reduction in hours are said not to affect court sessions and that staff offices will be available for emergencies.

The following district courts will have restricted counter and telephone coverage: Attleboro, Barnstable, East Brookfield, Fall River, Framingham, Haverhill, Ipswich, Lawrence, Lowell, Lynn, Malden, Natick, Newburyport, Palmer, Somerville, Springfield, Stoughton, Taunton, Uxbridge, Waltham, Westborough, Woburn and Wrentham.

The Western Division of the Housing Court and the Springfield Divisions of the Juvenile Court and Land Court will similarly have restricted counter and telephone coverage.

All Probate & Family Courts will have restricted hours after 3:00 P.M.

Source: The Patriot Ledger: "38 Massachusetts courts reduce public office hours because of budget cuts"

Update: Massachusetts Alimony Reform Closer to Becoming Law

Yesterday, the Massachusetts House of Representatives passed the Senate version of the Alimony Reform Act of 2011, meaning that its only remaining hurdle before becoming law (although it has an effective date of March 1, 2012) is Governor Patrick's signature. Governor Patrick has previously indicated his support for the bill.

For more information about the Alimony Reform Act of 2011 check out

Custody Reform Summary: The Good, The Bad, and The Compromise

There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill.

For our recommendations, keep reading after the table.

Current LawProposed BillProposed ChangeP1 – P5 Definitions of CustodyS.659Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”.S.847Definitions Deleted EntirelyH.1306 & H. 2684No ChangeH.1330H.2244P6 – Rights of Parents held equal absent misconduct.Court shall consider adverse effects of past or present living situation.S.659Delete Paragraph EntirelyS.847Delete Adverse Effects Language,Add Requirement of Equal Time, Minimum Guaranteed Time RequiredH.1306 & H.2684Delete Adverse Effects Language Only, Adds Parties are equal…