David M. Gabriel & Associates

Mistakes to Avoid During Alimony Negotiations

As a Massachusetts resident going through a divorce, you’re not alone. No matter your reason for divorce, one of the most contentious issues that arise in any divorce is the subject of alimony. Alimony payments—also known in some states as “spousal support” or “maintenance” is the legal obligation that a supporting spouse pay to the supported spouse. Massachusetts courts generally award alimony to the lower-earning spouse so that spouse can maintain a reasonable standard of living during and after divorce. In the commonwealth of Massachusetts, several types of alimony can be awarded. They are called rehabilitative, reimbursement, transitional, and general alimony. When a spouse is in need of additional education or job training to become financially independent, rehabilitative alimony can be awarded for up to five years. Reimbursement alimony may be ordered as compensation to a spouse who financially supported the family while completing an education or job training during the marriage. For short-term marriages, those lasting less than five years, the court may award transitional alimony to help the recipient spouse adjust to a new lifestyle or location. General alimony may be ordered by the court, depending on the length of your marriage. More times than not, one spouse will have to pay the other a set amount of money, at least temporarily. Both parties should be aware of the following mistakes. Mistake #1 Many people are under the false assumption that if they spend a lot of money before going to court, they will have to pay less.

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

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

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Holiday Custody

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.

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When mediation may be your best option in divorce

Divorce, while never easy, does not have to be an ordeal. For couples who wish to amicably end their marriages, there are a number of processes available that do not involve a combative mindset and are designed to minimize conflict in favor of compromise. One of the most common processes that aim for a more cooperative dissolution of a marriage is mediation. Mediation is the non-adversarial divorce process most familiar to the general public. In mediation, a couple meets with a third party to discuss the division of assets, custody issues, alimony, and any and all other issues that need to be settled in the course of a divorce. With an agreement in place, the couple files for divorce in the courts. How, then, does a couple choose the best course when seeking to end their marriage without going through a lengthy and costly bout of litigation? While every couple and family’s situation is unique, if your working relationship with your spouse is professional and your separation truly is amicable, mediation may be the best option for you. Mediation has many factors in its favor. With the couple using one mediator, together, it is possible for them to split the costs. Along with a generally lower hourly rate, mediation offers couples more control over the scheduling of sessions and the total time frame of the process than litigation in the courts. Mediation is intended to reduce conflict by encouraging the calm and constructive expression of needs and wants. It is

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

Many people fail to realize divorce requires more than simply signing a few documents. If you’re divorcing in Massachusetts, don’t be blindsided by the many decisions you’re about to face regarding the division of your marital property. 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 are valued at the same amount, the account owner may receive different withdraw amounts. This is because withdrawals will not be taxed in the same way from a money market, for example, as other accounts would be. The division of retirement accounts can be particularly daunting. There are currently no tax codes or other regulations in place regarding IRA accounts. This has allowed courts to permit IRAs to be divided between divorcing couples. 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 taxes on those properties as well. Debt is another matter you will need to be well-informed about when dividing property. No matter who is awarded the property, debt owed is still the responsibility of both parties, if the property was jointly owned. This means in the event the awarded party cannot fulfill payment obligations, the bank or other entity holding the debt will expect the second named party to fulfill payment obligations.

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What is Collaborative Divorce?

More and more couples, facing divorce or legal separation, are already turning away from contentious court proceedings and long-lived litigation to legal mediation. Yet, there is a third option, separate from litigation and mediation: the collaborative divorce process. This method is only a few decades old, but it already boasts a worldwide network of legal practitioners. Mediation involves a couple meeting with a trained and licensed mediator to work out the terms of their divorce, consulting separately with their respective attorneys and financial professionals as needed. On the other hand, collaborative family law involves the two partners’ attorneys meeting directly and separately from their clients. This approach can be beneficial when clients do not trust themselves to talk directly with each other, or where there is a concern about spousal abuse. The “collaborative” in the collaborative divorce process refers to attorneys working together to create an agreement in the best interest of both their clients. Collaborative family law has a scope beyond that of divorce cases. It can also help cohabiting couples separate, or with post-divorce financial issues that arise such as college tuition or support for adult children. Though it is not widely known in public consciousness, collaborative family law practice is not fringe, nor is it risky. Thousands of families worldwide have benefited from the collaborative divorce process in a way they would not have if they had undergone mediation or litigation. The collaborative divorce process originated in the Midwest United States in the early 1990s. Over the

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What factors do courts consider when determining child custody?

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.

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What is the difference between a fault and no-fault divorce?

In the Commonwealth of Massachusetts, the grounds for divorce depends on whether you decide on a no-fault or fault divorce. A no-fault divorce does not require parties to prove blame for the breakdown of the marriage. Either or both parties can file to begin the process for a no-fault divorce merely pleading that the marriage is beyond repair, and it is time to move on. The ground for this action is “irretrievable breakdown of marriage”. A fault divorce is more involved. In the Commonwealth of Massachusetts, you have the option of filing for divorce and claiming one person is to blame for the failure of the marriage. Common grounds for a fault divorce include cruelty and abuse, desertion for one year or more, adultery, impotence, excessive use of drugs or alcohol, failure to provide support or maintenance, and sentences of five years or more in a penal institution. Proving a fault divorce can be difficult. It is recommended the accusing party have solid proof of any fault grounds. Make sure to consult with a knowledgeable attorney before taking any divorce action to understand your options. Contact our office to have your questions answered today.

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