The holiday season is quickly approaching. With the holidays comes additional stress for many parents and children either facing a divorce or subject to a parenting or visitation schedule created by the courts or by agreement.
Some parents easily agree on pick-up and drop-off schedules for their children for Thanksgiving, Christmas, New Years, and the winter and spring school recesses. If you have just begun the divorce process it is not uncommon for such holiday schedules to have been ignored. By having a discussion with the other parent or alternatively negotiating through your attorney, a fair and equitable shared holiday visitation and summer vacation schedule can be created. If the parents cannot agree, the court can make a determination.
Unless you and your child(ren)’s other parent have an extremely amicable relationship having a holiday and vacation schedule in a divorce judgment or paternity / parenting judgment may help avoid later conflict. It can be beneficial to also include all major three-day weekends, full uninterrupted blocks of a week or two for travel in the summer, parent and child birthdays, Father’s Day, Mother’s Day, Easter and other religious holidays. The schedule can be in place in the event of a disagreement. Parents are free to temporarily agree to different times but are encouraged to do so in writing. If you and your co-parent are in complete agreement and wish to make permanent changes to the holiday visitation schedule the process is extremely straightforward with the assistance of competent counsel.
If you are considering divorce and are unsure how it may affect the holidays for your children, or you wish to create or modify a current holiday visitation or summer vacation schedule for your children, please call 617-431-8071 to schedule a consultation.
Marriages are all different. Some marriages are strong and can handle multiple stressors and survive. Others are more fragile and may not survive one or more major stressors or traumatic events without ending in divorce. Often couples have one or major stresses that cannot be fixed with financial planning, counseling, bankruptcy, medical treatment or time and result in divorce. If you have decided to file for divorce in Massachusetts, these are some common issues you may be discussing with your divorce attorney:
Infidelity or Adultery
Some couples are able to recover from infidelity. Often the damage to trust cannot be repaired. Massachusetts is a no-fault state. This means that when you file for divorce you may indicate it is due to an irretrievable breakdown of the marriage. In other states, this is often called irreconcilable differences. This means the relationship has deteriorated to the point the couple can no longer live together as spouses.
While the act of adultery in itself is not a basis for receiving a larger share of the marital estate during divorce or custody of the children, it may be relevant to the division or award of marital assets and child custody and should be discussed with your divorce attorney. If the unfaithful spouse spent large sums of money on their mistress, lover or paramour, the faithful spouse can seek to be credited for this waste of the marital resources. If the lover or paramour is a criminal, prone to illicit drug use, or engages in behavior that is otherwise not appropriate for children, this will be considered in determining child custody.
Job Loss or Unwillingness to Work
A major loss of income is typically a large source of stress for a marriage. It is not uncommon for couples to argue when they were accustomed to a certain lifestyle and are now required to cut back on expenses. Often it can take years to reestablish the same salary. This can take a serious toll on a marriage.
In some instances, spouses lose their jobs and do not seek further employment either out of a desire to remain home with children or in some instances outright laziness. The Courts will consider if a spouse has voluntarily taken a lower paying job, left the workforce, or taken a part-time job against their spouse’s wishes and without regard to the families’ financial condition. This can serve as a basis for imputing or attributing greater income when the Court makes determinations about child support, alimony or spousal support, and the division of marital assets. This is not a consideration when the loss or reduction of income is not intentional.
Illness or a Traumatic Incident
Sudden illness or a traumatic event may test a marriage. Often one party has difficulties recovering from the illness or incident, and it can have long-term effects on a relationship. In other instances, a spouse may disapprove of the response taken by their partner, causing disappointment, loss of trust or hurt feelings. Often families recover from these events, but the financial and emotional effects linger for years to come, and can result in divorce. If a partner is unable to physically care for a child due to an illness or injury or suffers mental health issues that impede their ability to supervise children, the Court will consider these issues when making a child custody determination.
Special Needs Children and/or Caring for Elderly Parents
Families are often faced with stresses resulting from caring for special needs children and declining elderly parents. Special needs children often require significantly more time and resources. Caring for elderly parents may result in an additional member of the household or time away from children and/or spouses. It is not uncommon for these issues to factor into a divorce. When making a child custody determination, Courts will consider a parent’s ability to care for a special needs child. The Court may also award additional child support to cover the expenses associated with a special needs child.
Debt or Overspending
Divorcing couples may argue about debt or overspending. Often spouses disagree about household spending and overspend and incur debt. In other instances, debts may have accumulated due to a failed business, illness, a traumatic event or loss of employment making it difficult to pay off the resulting obligations. If one spouse incurred the debts without consulting with the other, this can often lead to strife. If the couple has become insolvent or no longer able to pay debts when they become due, filing a bankruptcy may be an option to alleviate these issues. If the cause of the debts is a spouse who is spendthrift or a person who spends money in an extravagant and irresponsible way, there may be no means to control their behavior. Courts have the ability to consider a spouse’s conduct when dividing marital assets and debts. This can include awarding more property or making one spouse solely responsible for a debt.
A Failed Business
Starting a business is often difficult. Often the founder does not have income for a long time. If the business is not successful, the founder may lose the entire investment. If the spouse of the founder did not fully support the decision, this can often cause a rift in the marriage leading to divorce. When going through the divorce process, it is important to determine if you became personally liable for any portion of the debts associated with your former spouse’s business. Even if you guaranteed loans for your spouse’s business, the Court may order that your spouse be responsible for the debt.
Often couples do not divorce until their children have finally left the home. Many spouses stay in bad marriages for financial reasons and/or for the benefit of their children. Divorce is often expensive and can result in less money being available for children and/or retirement. Some parents choose to stay in a marriage to ensure stability for their children. When both spouses have worked throughout the marriage this can make a divorce an easier process when child support and child custody are no longer issues. If one spouse stayed home to take care of the children and has not rejoined the workforce, they may be eligible for long term alimony, making the divorce process more complicated.
Abusive behavior from a partner should never be tolerated. Often partners give their spouses an option to seek counseling in the hopes of saving the relationship. Sadly, many spouses stay in physically or emotionally abusive relationships for too long. Unfortunately, the law does not directly protect spouses from long-term emotional abuse. If the pattern of emotional abuse may be established through evidence, the Court may consider this during a child custody determination.
Spouses will have an easier time confronting physical abuse. Spouses or other members of a household may seek a protective order pursuant to Chapter 209A of the Massachusetts General Laws. You do not have to have a divorce case pending. The case will be heard in the Superior Court, Boston Municipal Court, or the Probate and Family Court. If you have been physically harmed by your partner/spouse or member of your household, or they have threatened you with imminent bodily harm, please contact the police or see the link below for more information:
Sometimes these issues resolve themselves over time. Otherwise, they may lead to a lingering toxic relationship. If your marriage cannot be repaired through treatment or counseling, you should consider freeing yourself of these stresses through divorce.
Couples divorce for many reasons. If you are having many of the issues listed above, are considering divorce, and wish to learn about your rights from a divorce and family law attorney, please call me at 617-431-8071 to schedule a consultation.
On December 22, 2017, Congress approved the Tax Cuts and Jobs Act (TCJA), that made significant changes to the Internal Revenue Code that will affect alimony or spousal support going forward. If your divorce is already final you should not be concerned. If you are contemplating divorce or currently in the middle of a divorce, and are concerned about paying alimony or spousal support, you should consider how the change in the tax code may affect your taxable income.
Under the outgoing version of I.R.C. § 215 a taxpayer was able to deduct “alimony or separate maintenance payments” from gross income. The new tax law repealed this deduction for any divorce judgment or separation agreement executed after December 31, 2018. This will not affect modifications of older judgments. The repeal of the deduction will not apply to any divorce or separation agreement executed on or before December 31, 2018, and modified after that date unless the modification expressly indicates it is subject to the new rule.
If you became divorced prior to the this change in the law, the tax deductibility of your alimony will not be affected, and you may modify the payment amount or duration. If you or your spouse file for divorce or if your divorce is filed and finalized prior to January 1, 2019, the old rule still applies. If you are divorced after January 1, 2019, alimony, spousal support or separate maintenance payments will remain taxable income for the paying party and will be a non-taxable support payment to the recipient.
Often the spouse who pays alimony or spousal support is in a higher tax bracket. The spouse that pays the support will no longer benefit from the tax deduction and will have to pay taxes on income used to make alimony or spousal support payments. The party that receives the alimony or spousal support will not have to pay taxes on these payments. This means there will be potentially less net income available to you, your former partner, or your children. This loss may evidentially be mitigated by a future Court decision or the state legislature in Boston, but no change has occurred yet.
If you are planning or in process of a divorce, based on recent changes in tax law, it is in your financial interest to determine the advantage of finalizing the divorce before or after the end of calendar year 2018. The tax treatment of alimony and spousal support payments may differ substantially for those divorced before or after the end of the year. If you wish to learn more, please call me at 617-431-8071 to schedule a consultation.
The Executive Office of the Trial Court of Massachusetts located in Boston, Massachusetts, is responsible for creating child support guidelines and worksheets for calculating child support payments in paternity, divorce, and other family law cases. New guidelines will be going into effect on June 15, 2018. These amended child support guidelines do not reflect a change in the Massachusetts child support law as written. The child support guidelines continue to presume that children have a primary residence with one parent and spend approximately one-third of the time with the other parent. The amendments represent a change in the presumptive or default calculations of the amount of child support to be ordered by the Massachusetts Probate and Family Courts. Judges have the discretion to order more or less than these amounts based on the specific facts of the case. Otherwise, the Probate and Family Courts must order the amounts set forth in the guidelines and accompanying worksheets, unless the parties agree otherwise.
On September 15, 2017, child support guidelines were issued that created changes factoring in college aged dependent children. The 2017 child support guidelines created a small presumptive decrease for financially dependent children attending college or university who were over the age of 18 and under the age of 23. Additionally, presumptive calculations based on parenting time were removed from the child support worksheets.
Prior to these changes in 2017, the Massachusetts child support guidelines were last changed as of August 1, 2013. These guidelines included a presumptive reduction of child support based on parenting schedules that were more than one-third but less than one half of the time for the parent who is not the residential parent, or a nearly fifty-fifty or equal parenting schedule.
Effective June 15, 2018, new Massachusetts child support guidelines and worksheets will go into effect that retain the consideration of college aged-children and again consider parenting time or the parenting schedule. The worksheets will again consider parenting schedules with equal or close to equal parenting time. The worksheets also create a presumptive calculation for when there is more than one child covered by the child support order, and each parent provides a primary residence for at least one child. This covers instances where children of the same parents do not share the same parenting arrangement or schedule. Unfortunately, this update does not take into account the changes in Federal tax law resulting from the Tax Cuts and Jobs Act of 2017.
Whenever the child support guidelines are amended, there may be a basis for reducing or increasing a child support order. One of the grounds for filings a Complaint for Modification of child support is that there is now a difference between the amount of the existing child support order and the amount that would result from application of the current child support guidelines.
If you are a party to a child support order by a Massachusetts Court and wish to discuss the potential increase or reduction of your child support payment, please call me at 617-431-8071 to schedule a consultation.