September 2015

What’s the difference between visitation and a custody agreement?

Not all relationships last; that is a fact of life. Though many marriages and domestic partnerships in Massachusetts end in a very cut-and-dry manner, separations that involve children can prove more difficult to manage. Custody rights and visitation right are always a top concern among parents who are seeking divorce. It is important to point out that these two rights are not interchangeable. Having a visitation order from court authorities does not mean that the parent with whom the children will be visiting has any custody rights. This is simply a plan that has been created to provide the child with a way to foster a relationship with the parent that they are not living with. Parents can agree on visitation, or the court may give an order for their own plan. There are two different kinds of custody rights that a divorced parent might have. The first is physical custody. This means that the child lives with the parent for the majority of the time. The second is legal custody, which gives the parent the authority to make critical decisions regarding the well-being of the child. It is the mission of the court to satisfy the needs of the child, not the wants of the parents. This should always be kept in mind when dealing with co-parenting arrangements. If you are seeking a divorce, it is important to be aware of your rights as a parent and know the differences between common court orders, such as visitation and custody.

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Mediation is a good route for property division in Massachusetts

Even if you were the party who initiated the process, going through a divorce is often one of the most painful and stressful events in a person’s life. You must suddenly find a new way of living, split all assets fair and equally and, if you have children, make child support arrangements. Though most people set out to make their divorce as civil and stress-free as possible, the process often ends up spawning many disagreements. One of the best ways to work through a divorce in Massachusetts is mediation. This can be great for settling the division of assets and property. Mediation is a route that is used to come to agreements that work for both parties without the need of a lengthy courtroom process. When a divorce case goes to court, property division is placed in the hands of the judge. This judge, more often than not, does not know the divorcing parties on an individual basis. Property that is important to you might be lost. Going through mediation lets you have half the control over what happens to the property that you previously co-owned with your ex-spouse. The two of you will sit down together with a professional mediator and outline goals so that you can seek solutions. By the end of the mediation process, assets will be fairly divided in a way that both parties agree with. This removes a great deal of time and stress. If you are going through a divorce, mediation might be the

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What determines if a prenuptial agreement in conscionable?

Prenuptial agreements by their nature may not be equitable in the same sense as separation agreement entered into upon a divorce. Massachusetts law as interpreted by its courts holds that one spouse relinquishing claims to the existing assets of a future spouse – even if those assets are substantial – does not necessarily mean that a prenuptial agreement is invalid on its face. Thus, it is possible for a prenuptial agreement to be one-sided in nature, and to leave one spouse in a position after the divorce that may be less than what he or she had during the marriage. Instead, the legal test of the conscionability of such an agreement is whether it strips the spouse contesting its validity of substantially all marital interests. The considerations underlying conscionability include whether either party to the prenuptial agreement engaged in fraud, or failed to fully and fairly disclose assets, or in some other way took unfair advantage the other at the time the agreement was executed. For many years courts in Massachusetts used the term “fair and reasonable” to describe the requirement that a prenuptial agreement should be fundamentally fair even if it is not as balanced as a separation agreement might be, but they now use the term “conscionability” instead. The drafting of a valid, conscionable prenuptial agreement, particularly when the prospective spouses are significantly unequal in the income and assets that they bring into the marriage, can be fraught with legal peril if it is done in a way

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Can alimony be terminated in Massachusetts?

Alimony is received in multiple ways, including spousal support. Those in Massachusetts might wonder if alimony can be terminated. Here are some general rules for receiving and ceasing alimony. A judge is the sole individual who has the power to change general term alimony as long as there is no written agreement that specifically gives instructions for the alimony to remain unchanged. Changing the end date on orders cannot be done. The alimony agreement is usually void if the person receiving alimony gets remarried, either spouse passes away or the spouse that is providing the other with funds reaches their full retirement age. This general term alimony may also be suspended if the spouse receiving the funds lives with another individual. Most surviving independent contracts cannot be changed, unless under extreme circumstances, such as one party going into poverty without a revision. In short, your Massachusetts alimony agreement cannot be changed unless you family and are in dire need or have a unique situation. Reasons for termination are very specific and also unlikely in most cases, such as the spouse dying while paying alimony benefits to the other spouse. Alimony is a big factor with many divorces in these modern days. People often rely on that money to live on and feed their children. Likewise, some who pay alimony do not think that the people they are paying should be receiving benefits. If you have an additional question regarding alimony or spousal support, contacting an experienced attorney might be very

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Retiring may not terminate alimony

In an earlier post, we discussed the various changes that may cause alimony to end, such as if one person died or remarried. Alimony may also end when the person paying the alimony reaches full retirement age. Under Massachusetts law, there is a presumption that a person no longer has to pay alimony when he or she reaches full retirement age. Full retirement age is the age when a person is eligible to receive full Social Security retirement benefits. The retirement age is 65 for people born before 1938. For people born in 1938 or after, the retirement age goes up to 67. There are exceptions to this presumption. In some situations, a judge can order a person to continue paying alimony to his or her ex-spouse even if that person reached the retirement age. The judge must find that there is good cause to enter this order. A judge must consider a number of factors when deciding whether to deviate from the presumptive duration or amount of alimony. These factors include: The age and health of either spouse; Tax considerations; Whether one spouse provides health insurance for the other spouse; Whether one spouse has a life insurance policy naming the other spouse as a beneficiary; Any sources of income or assets that were not allocated in the divorce; Whether either spouse contributed financially to the couple prior to getting married; A spouse’s inability to provide for his or her means due to physical or mental abuse by the other

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