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Showing posts from November, 2011

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 w

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 i

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 con

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;  T

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 d

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