Articles Archives - Law Office of Kim-Marie Phelan, LLC

ARC vs. GAL vs. Parenting Coordinator

Law Office of Kim Marie Phelan

Divorce, even in the most amicable situations, can be difficult for children. When divorce is not so amicable, and courts get involved, this can add to the stress of the situation. A courtroom environment can intimidate children old enough to understand the proceedings and overwhelm children too young to grasp exactly why they are there. Luckily, there are a variety of legally recognized advocates for children available in Massachusetts courts: a guardian ad litem, an attorney-representing-children, and a court-appointed parenting coordinator. 1. Guardian Ad Litem A guardian ad litem (GAL) is an individual appointed by the court to investigate, report and at times make recommendations as to matters of custody, parenting time; and requests for in-state and out of state removal relative to the parties’ children. A guardian ad litem may be a licensed mental health professional with a focus on working with divorcing couples and their children, or may also be an attorney who has undergone additional training to work with children and their families. A guardian ad litem interviews the children, their parents, and other collaterals, such as medical providers, teachers and other individuals with first hand knowledge of the issues presented to determine what is in the children’s best interest. The GAL will then present these findings in a written report to the court. In a divorce, either party or both parties may request the involvement of a GAL, or the court may order the appointment of one to determine the children’s best interest. The cost of

The Massachusetts Divorce Process: Know Your Options

Law Office of Kim Marie Phelan

The decision to file for divorce is never easy. When the determination has been made, it’s essential to understand the process, which varies by state. To begin the divorce process in the Commonwealth of Massachusetts, here are a few things to consider. To file for divorce in Massachusetts, one of the following must apply: (1) you have lived in the state for one year, or (2) the reason the marriage ended happened in Massachusetts, and you have lived in Massachusetts as a couple. Massachusetts allows a divorce to be filed as ‘no-fault’ or ‘fault,’ and either of these can be contested or uncontested. A no-fault divorce is called an “Irretrievable Breakdown of Marriage” in Massachusetts and is a result of a marriage broken beyond repair, but neither spouse blames the other. There are two no-fault options: uncontested or contested. An uncontested no-fault divorce is when both parties agree that the marriage has irretrievably broken down AND a written agreement about child support, parenting time, alimony, child custody, and dividing marital assets has been agreed upon. A contested no-fault divorce, on the other hand, is filed when both spouses believe the marriage has ended, but they are NOT in agreement about custody, support, or marital property issues. When one spouse is considered at fault in causing the marriage to end, one of seven different fault grounds must apply. The person asking for the fault divorce must prove one of the following grounds: Adultery Desertion Gross and confirmed habits of intoxication Cruel

Don’t Fall Victim to Hidden Assets During Divorce

Law Office of Kim Marie Phelan

When it comes to divorce in Massachusetts, everything related to finances must be fully disclosed. This includes every single asset, purchased together or otherwise, as well as all accumulated debts. Each spouse is instructed to report known findings through a financial affidavit. It is against the law to purposely hide, understate, or overstate assets, as well as any marital property, debt, income, or expense. In extreme cases, this can potentially lead to the withholding party being sentenced to serve time in jail. If you suspect your spouse of attempting to hide assets, it’s imperative to retain a divorce lawyer who has significant experience discovering hidden or undervalued assets. A top-notch Massachusetts divorce lawyer will know the tricks used to hide assets and work with forensic accountants, investigators, and other experts to uncover these attempts to mislead the system.

Divorce Facts Every Massachusetts Couple Should Know

Law Office of Kim Marie Phelan

Whether you’re anticipating a separation or contemplating divorce, you should know some key information regarding divorce in Massachusetts. Reasons for Divorce There are several permitted grounds for divorce under Massachusetts law. Traditional fault grounds—such as adultery or incarceration—as well as no-fault grounds, are justifiable means for divorce. No-fault grounds describe a faultless but irretrievable breakdown of the marriage. Support Payments Spousal support or alimony payments are the obligations of one spouse to support the other financially for a temporary or permanent basis. Not all divorce cases will involve spousal support ruling and are determined on a case-by-case basis. A number of factors are taken into consideration when awarding alimony, including the length of the marriage, the conduct of the parties during the marriage, each spouse’s age, health, and ability to earn an income. The court may also consider the contribution of each party in the acquisition, preservation, or appreciation in the value of their respective estates. Each party’s contribution as a homemaker to the family unit will also be considered. Child support guidelines are considered when determining the order of child support payments made by either spouse. The Percentage of Income formula is typically used as a Massachusetts child support guideline to calculate the support obligation. The number of children needing support, as well as each party’s income, plays a role in the allocation of child support payments. The courts also have the ability to deviate from traditional guidelines if ordered payments can be proved to be too burdensome. Custody

Divorce Modification in Massachusetts

Law Office of Kim Marie Phelan

Once a divorce is finalized, the documents are filed with the courts. However, life is unpredictable and circumstances can change over time. In Massachusetts, if an earlier court order or judgment no longer suits the parties because circumstances have changed in a significant way since the order or judgment was issued, the court can “modify” the prior order or judgment. Cases where a modification might be appropriate include those where the children are significantly older than at the time when the last child support order was issued, or where a person ordered to pay alimony has retired and now has a substantially smaller income than at the time he or she was ordered to pay alimony. In general, to obtain a modification through a complaint for modification, a person must prove to the court that a material change in circumstances has occurred since the last judgment was issued, and the change makes a modification of the orders necessary. When the change concerns a child or children, you must also prove that the proposed change is in the best interest of the child or children. Consulting with an experienced family law attorney can help you with the divorce modification process. Whether your claim is about child support, custody, parenting time or alimony, you want to know all of the pros and cons to making the changes. If you have questions about your divorce agreement and would like to know if a modification is appropriate, please contact our law office to schedule

Common Myths in Massachusetts Family Law Every Parent Should Know

Law Office of Kim Marie Phelan

When it comes to divorcing and family law, things get complicated quickly. It’s essential to know your rights regarding your children. Presented here are some common myths every parent should be made aware of during divorce or custody proceedings. Myth: A parent’s failure to pay child support can result in the parent being kept from seeing the children Only a judge can determine visitation rights. If a parent fails to pay child support, the other parent is not automatically given the right to withhold visitation. The Court’s orders for visitation cannot be ignored simply because the child support account is two months or even two years delinquent. Myth: If a parent doesn’t agree with the court orders, they can move the kids out of state Once an action involving custody of children (divorce, domestic abuse, guardianship, etc.) is filed in Massachusetts, neither party can remove a child from the state without permission from the other parent or a judge. This act of moving a child out of state without permission can result in criminal charges. A modification with a compelling reason to move with the children, such as once-in-a-lifetime education, family, or work opportunity, must be filed to remove children from the state legally. Myth: He/She cheated on me, so I should get everything Infidelity is grounds for divorce in Massachusetts, however, in a divorce, a judge must consider many factors in making a decision, including all conduct of the parties during the entire marriage, good and bad. It is

Is it legal to videotape my spouse behaving badly (verbal or physical abuse, infidelity, etc) as evidence in a divorce case?

Law Office of Kim Marie Phelan

As thoughts turn towards divorce, tempers can flare and people may behave in ways they normally would not be proud of, even in a relatively amicable situation. Of course, the bad behavior of a spouse—ranging from neglect of household duties to infidelity to abusive actions—may well have begun long before the divorce, and may well be the reason for it. In seeking a favorable divorce settlement, one that compensates you for violations of the marriage contract and shields you from your spouse’s ongoing bad behavior, you will want to have evidence to bolster your claims. In a world of smart phones, where everyone has both a video camera and a broadcasting station in their pockets, you may be tempted to record your spouse’s bad behavior. In a word: don’t. Massachusetts laws on recording interactions between persons are possibly the strictest in the nation. While many states have “two-party consent” laws, meaning that both (or all) people on a recording must know they are being recorded and consent to it, the Commonwealth takes it a step further. Recording private conversations falls under Massachusetts statute chapter 272, section 99, also known as the wiretap statute. Explicitly instituted as a measure against organized crime, the statute is of theoretical interest to law students because it addresses both police and civilian conduct with regard to recording in the same law. For civilians, there is an explicit ban on recording wire communications (i.e. phone conversations) and a ban on any audio recording by other means

Holiday Custody

Law Office of Kim Marie Phelan

The winter holidays may be the most wonderful time of the year, but they are also a top contender for the most stressful time of the year. Regardless of family structure, holiday gatherings and visits can be contentious. Under the stress of cleaning and cooking and visiting in-laws, even close-knit nuclear families, amicably divorced co-parents, or happily mixed step-families might experience some tension and conflict around this time of the year. Given the stress of preparing for holidays, and the emotions invested in family celebrations, it is more important than ever for there to be good channels of communication about scheduling. When child custody agreements are involved, communication is even more important, especially if custody arrangements or their enforcement have been contentious issues in the past. Many shared custody agreements drawn up as part of the divorce settlements will specify holiday visitation and custody rights for each parent. For example, one parent may have the children for Thanksgiving and New Year’s, with the other parent having Christmas and the surrounding days. In the next year, the parents might swap time periods, following an alternating schedule laid out in the custody agreement. Changes happen, however. A flight back from a visit to grandma might be delayed by snow. A family wedding might be scheduled for the days after Christmas. A teenager with a mind of her own might want to go to a friend’s cookie-decorating party close to mom’s house an hour away, even though dad has custody for that date.

Don’t Be Blindsided By The Division of Marital Property in Your Divorce

Law Office of Kim Marie Phelan

Not all property is valued or taxed in the same way; therefore, the process can be long and confusing without the help of a knowledgeable attorney at your side. It’s important to consider that even though different financial accounts may be have the same current value and/or balance, the account value for purposes of a division of assets, may vary based upon the nature of the account in question. For instance when dividing retirement assets, as opposed to more liquid assets such as bank accounts, any withdrawals made will be taxed to the transferor absent a properly prepared Qualified Domestic Relations Order being entered by the Court. Regarding real estate property, if one spouse is granted full control of the marital home, for example, or vacation properties, then he or she is usually expected to pay the expenses on those properties during the pendency of the divorce, including but not limited to the payment of the mortgage, real estate taxes, homeowners insurance premiums, and routine maintenance Debt is another matter you will need to be well-informed about when dividing real and other property. No matter who is awarded the property, the debt owed to the lender is still the responsibility of both parties, if the property was jointly owned. This means in the event the awarded party cannot fulfill his or her payment obligations, the bank or other entity holding the debt will expect the second named party to fulfill the payment obligations. If you’re like most families, you have

What factors do courts consider when determining child custody?

Law Office of Kim Marie Phelan

Courts primarily base their decision on what is in the child’s best interest, using the Child’s Best Interest Standard. Factors vary from state to state, but the overall goal is to make a decision that promotes the health and wellbeing of the child. Parents are encouraged to come to an agreement on matters of child custody and visitation to submit to the court. However, if the judge finds the settlement agreement is not in the child’s best interest, it can be rejected. Courts will generally determine the stability of each parent’s home environment and their interest and commitment to caring for the child. Other factors include the health of each parent, both physical and mental; the special needs of the child, if any; the child’s own wishes if they are old enough to say so; whether there is evidence of illicit drug use, or drug/alcohol abuse; and adjustment to the community, such as where they go to school, proximity to other caretakers, etc. In Massachusetts, the best interests of the child are the overriding guiding principle for judges making custody decisions. State law also says that the child’s “happiness and welfare” are paramount and that the parents’ rights are equal unless a parent has been found to be currently unfit. Child custody cases can be complicated and always require extensive knowledge of family law. When facing a child custody issue, you will probably have several questions. Please call our office for experienced advice regarding your family law concerns.

Law Office of

Kim-Marie Phelan LLC

Articles

ARC vs. GAL vs. Parenting Coordinator

The Massachusetts Divorce Process: Know Your Options

Don’t Fall Victim to Hidden Assets During Divorce

Divorce Facts Every Massachusetts Couple Should Know

Divorce Modification in Massachusetts

Common Myths in Massachusetts Family Law Every Parent Should Know

Is it legal to videotape my spouse behaving badly (verbal or physical abuse, infidelity, etc) as evidence in a divorce case?

Holiday Custody

Don’t Be Blindsided By The Division of Marital Property in Your Divorce

What factors do courts consider when determining child custody?

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