Legal Blog

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

How to Get a Protective Order Against an Abusive Partner or Spouse

Law Office of Kim Marie Phelan

Domestic abuse is a serious and even life-threatening situation—and there are legal remedies to help survivors protect themselves, their children, and their property as they make the brave decision to escape an abusive situation and begin moving forward with their lives. One of the most important tools available to victims of domestic abuse is the restraining order. In Massachusetts, a restraining order is known as a an “Abuse Prevention Order” or a “209A Order.” This name refers to Chapter 209A of the Massachusetts legal code, entitled the Massachusetts Abuse Prevention Act, which defines domestic abuse. According to Chapter 209A, domestic abuse may be: 1. Physical violence 2. Attempts to harm with physical violence 3. Causing another person credible fear of serious harm 4. Coercing another person into sexual relations through physical force, the threat of force, or duress Acts of physical violence are themselves criminal offenses subject to prosecution in Massachusetts. While emotional and verbal abuse are not defined as crimes under Massachusetts law, they are recognized as common features of abusive situations and relationships. Financial abuse—the withholding of or control over a partner’s financial or material resources—is another feature of abusive situations. A 209A protective order may be filed for at any Massachusetts court—superior, general, or probate and family. If children are involved, though, only a county-level probate and family court can address visitation issues in a protective order. A protective order can require an abuser to cease abusive behavior, to avoid all contact with the protected party, to

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

Does Massachusetts divide property equally between the spouses during a divorce?

Law Office of Kim Marie Phelan

Rather than divide marital property equally, the Commonwealth of Massachusetts’ family law code seeks to divide it equitably. Massachusetts defines “marital property” as any property—be it income, assets, real estate, or everyday items—that comes into possession of the couple or either of the spouses individually during the course of the marriage. This could include trade secrets, stock holdings, and artistic creations. For individuals of high net worth, or those who make their living by possessing valuable intellectual property, it is especially valuable to have a prenuptial agreement in place to keep this property separate from that held in common in the marriage. In deciding what is an “equitable” division of property, the court will consider a number of factors. These include if the divorce is no-fault or at-fault, the relative incomes of the parties involved, and the financial and emotional contributions made by each party during the marriage. If you are seeking to protect your hard-earned assets from someone who wants more than his or her fair share, or if your contributions to the marriage and household are being downplayed, call our office today to discuss your case. We’ll help you find peace of mind.

I was married and last lived in Massachusetts with my spouse but do not live in Massachusetts now, can I get divorced in Massachusetts?

Law Office of Kim Marie Phelan

While marriage laws are based on where the parties are at the time of marriage, divorce is based on where the parties live at the time of divorce. The answer to this question depends on how long you’ve resided outside of Massachusetts. While most states require you to be a resident before you may file divorce papers, the required length of residency varies per state. In most cases, it’s at least a minimum of six months. To file for divorce in the state of Massachusetts, one of the following must apply: You, or your estranged spouse, have lived in the state for a year, OR You lived with your spouse as a married couple in Massachusetts when your “grounds” for divorce happened. You should be aware that whatever court handles the initial divorce settlement has jurisdiction over all other residual issues such as child custody, child support, and any amendments to these arrangements. Because divorce laws can vary dramatically between the states, it is important to understand how residing in different locations may impact your right to marital property, child custody, alimony payments, and child support payments. Make sure to consult with a knowledgeable attorney before taking any action to avoid any filing issues. Contact our office to have your questions answered today.

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.

Protecting Assets in a Divorce

Law Office of Kim Marie Phelan

Divorce is as much a financial blow as it is an emotional one. Alimony and child support may take a large, even unreasonable amount out of your monthly paycheck. Conversely, if your income is much smaller than your soon-to-be-ex-spouse’s, or if you stayed at home to look after the family, you might find yourself in dire financial straits if you are not awarded a just settlement. You deserve a divorce settlement that takes into account your circumstances and your contributions to the marriage— and financial, logistical, or emotional. In this article, you will find three steps to follow to protect your assets in divorce and reach the settlement that is best for you. I. Be Open and Honest—and Savvy On your end, it is important not to hide any of your assets. Hiding your assets, or even appearing to hide your assets, may be used against you in court by your spouse and his or her counsel. In fact, most people’s attempts to hide their assets—by spending large amounts of cash—fail to improve their divorce outcomes. This is for two reasons. First, because Massachusetts family courts take into account income (earnings) rather than expenditure (spending). Second, because assets are defined as more than cash, excessive spending fails to protect non-liquid holdings like stocks, bonds, and even intellectual property. To understand the full scope of your assets, it is worth investing in professional help to you value and locate them. This way you can have the knowledge you

Law Office of

Kim-Marie Phelan LLC

Divorce Modification in Massachusetts

How to Get a Protective Order Against an Abusive Partner or Spouse

Common Myths in Massachusetts Family Law Every Parent Should Know

Does Massachusetts divide property equally between the spouses during a divorce?

I was married and last lived in Massachusetts with my spouse but do not live in Massachusetts now, can I get divorced in Massachusetts?

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?

Protecting Assets in a Divorce

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