How 401(k) accounts are handled in divorce

The amount of a 401(k) account that has accumulated during a marriage is considered to be marital property and thus subject to division in Massachusetts divorce cases. Although early withdrawals prior to the account holder’s reaching the age of 59 1/2 would normally give rise to an early withdrawal penalty, the law provides an exception to this when a withdrawal is made pursuant to a court’s order. When the divorce occurs, the court will issue a qualified domestic relations order defining the portion of the account owed to the other spouse and listing the payee spouse’s identifying information. If the order is not prepared correctly, the account holder may still be subject to the penalty. Upon a correctly completed and submitted QRDO, the plan administrator will then withdraw the amount ordered for payment to the recipient spouse. Although the account holder will not incur an early withdrawal penalty, the payee spouse will incur tax liability for the lump sum payment he or she receives if that is the manner in which they choose to receive what is owed. They may thus wish to explore other options, such as leaving the portion owed to them in the account of their spouse, with the percentage that belongs to them clearly defined in the QRDO. While the recipient will not be able to add funds to the amount or to withdraw prior to when their spouse does, doing so may provide some tax benefits. Another alternative is to roll the finds received over

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What is the legal significance of establishing paternity?

A man in Massachusetts cannot assert his legal fathers’ rights unless paternity has been established. Although many people believe that putting a man’s name on a birth certificate establishes paternity, this is not actually true. Unless a man and a woman were married at the time of a child’s birth, there is no automatic assumption of paternity. Paternity can be established after a child is born in a number of different ways. Both parents may sign a voluntary acknowledgment of paternity, or a DNA test may be used to establish paternity. If an unmarried father does not legally establish paternity soon after his child is born, he could risk another man stepping in to voluntarily assume paternity. Another man could do this by marrying the mother and agreeing to sign a legitimation form. Once paternity is legally established, a child’s father will be responsible for paying his share of the expenses for raising the child. The father will also have custody and visitation rights. If a mother tries to give her child up for adoption or allow a stepfather to adopt her child, the child’s father can stop these actions from going forward by refusing to provide his consent. If a father was unmarried when his child was born and his relationship with the child’s mother has ended, it may be wise for the man to establish paternity as soon as possible. An attorney may be able to help a father in this situation to assert his fathers’ rights and

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Fathers may object to adoption of their child

Massachusetts residents may know that parents may object to their child’s adoption. This fundamental right might be complex when the father is not married to the mother. In such cases, the biological father may need to take steps to assure that his rights are protected. One hurdle in establishing a father’s rights is paternity. This is done using DNA testing where genetic material is compared between the father and the child. There are times when the father is unaware that a pregnancy exists. In such cases, it may be difficult to have testing done before an adoption is completed. When this happens, it is problematic for a father to have any say on the adoption of his child. Fathers who are aware of the pregnancy may wish to have testing done quickly. The court may view prolonging this as a sign the father is not committed to caring for the child. To eliminate such an impression, the father may wish to have genetic testing done as soon as the child is born or while the mother is still pregnant if he believes she would want to give the child up for adoption as soon as the baby is born. Other things that might be done to illustrate the father’s parenting commitment include helping to pay for expenses related to the pregnancy and to begin paying voluntary child support once the birth occurs. In addition, establishing a parent-child relationship is essential. In spite of showing paternity and an effort at committed

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A look at how an inheritance is treated during a divorce

Massachusetts couples may be interested in information regarding the splitting of inheritances during a divorce. The outcome could depend on how the money is treated when received. When a marriage ends, there are often questions about whether certain property is included in the division between the former spouses. One type of property that may be contentious is an inheritance received by one spouse during the marriage. An inheritance received before or after the marriage is generally not considered marital property, so this is usually not divided. Similarly, when an inheritance is received during a marriage by only one spouse, this usually not counted as marital property. When the inheritance is received and the funds are kept separate from other marital property, it is usually safe. This means that the money is deposited in a separate bank account than the rest of the money owned by the former couple. If the inheritor commingles the inheritance with the rest of the couple’s money, though, this could make it part of the former couple’s marital property. This, in turn, would be part of the property division phase of the divorce. This could apply to both inheritances received during the marriage and outside of the marriage. It may be possible to show that the funds were never meant to be mixed, but the bar for proving this in court can be quite high. Understanding the proper way to handle inheritance funds, real estate holdings and other property in a high net-worth divorce can be

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Addressing complex property concerns during a divorce

While many Massachusetts divorces can be contentious as property division is discussed, some situations are more challenging because of the complex nature of marital and other assets. Business interests, stocks, real estate, and other issues may require particularly careful analysis to determine value and status as marital or separate assets. Those of you who hold executive positions, own your own companies or have a high net worth may find these issues to be particularly significant during divorce proceedings. An effective approach to property division begins with accurately valuing assets. Tax consequences should also be considered as certain funds are evaluated. In addition to determining the value of retirement resources, professional bonuses, stock options, and bank accounts, it is important to evaluate collectible items, antiques, and other physical belongings of value. Real estate and closely held businesses should also be evaluated. With an accurate value of the marital estate, it is possible to work toward setting attainable goals related to the property division phase of the divorce. The principle of equitable distribution is a guiding factor through this process. A fair division of assets is often determined by a judge, meaning that it is important to present a convincing argument for your wishes with regard to complex assets. It may be a priority to define certain properties as separate during this phase. A prenuptial agreement may also play a significant role in determining how marital assets are to be divided. If you are facing challenges related to high-value or complex assets

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Reasons to challenge paternity in Massachusetts

Families may benefit greatly by knowing the identity of a child’s father. Determining paternity grants them access to the medical and genetic history of the father, allowing them to learn about any medical conditions or diseases that the child could inherit. It may also mean that the father has the right to be involved in raising the child, helping to provide for the child’s needs. However, sometimes a man is wrongfully labeled the biological father, and he could file a suit to challenge paternity. Medical evidence is heavily relied on to establish paternity, but while these tests are largely accurate, they sometimes provide incorrect results. A man could challenge paternity results if the lab test was tainted or fraudulent. A tainted test is grounds for a suit if the lab has made errors before and produces substandard work on a regular basis. Fraudulence may exist if there is evidence that someone else was sent to take the DNA test on behalf of the alleged father. Men could also challenge paternity results if there is proof of someone tampering with the results or proof that they cannot have children because they are infertile. A man who believes that his wife was unfaithful in their marriage and that a child born to her was a result of that infidelity has legitimate grounds to challenge paternity, as husbands are presumed to be the fathers of children born to their wives during their marriages. While there are many reasons for fathers to challenge paternity,

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Courts consider several factors in marital property division

Massachusetts law provides some specific guidelines for the court’s consideration regarding property division in a divorce proceeding. Since Massachusetts is an equitable distribution state, the court is charged with facilitating a settlement that is deemed fair to both parties. This approach differs from a community property division in that “fair” may not necessarily mean “equal.” When a mutually satisfactory division of assets cannot be reached in a divorce proceeding, the court first must determine what assets and debts are to be considered marital property. It must then proceed with an appropriate valuation of that property. Once the property is valued, the court then issues a ruling setting forth a division of property deemed to be equitable. Several factors must be considered by the court in its decision. These factors are defined by Massachusetts statutes, including the length of the marriage, the conduct of the parties during the marriage, the age, health, station and occupation of the parties, the amounts and sources of income, vocational skills and future earning capacities, employability, estate, the liabilities and needs of each party and the amount and duration of any alimony awarded. Additionally, the present and future needs of dependent children must be considered. The court may also consider each party’s contributions with regard to the respective estates, the contributions of each party as homemaker and other specific considerations such as health coverage. The stress of a divorce proceeding can be considerable. Seeking the advice of a family law attorney may help to facilitate the

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Fathers’ rights and shared custody

Massachusetts fathers who are going through a divorce may have the mistaken belief that courts favor women in making custody decisions. While this may have been true in the past, the law specifically prohibits courts from assigning custody to one parent over the other based on the parent’s gender. Instead, courts are to put the child’s best interests first and they consider a number of relevant factors in making the custody orders. Courts generally favor shared custody situations. There are two types of shared custody in Massachusetts. The first is called shared legal custody. When fathers are granted shared legal custody with their child’s mother, both the father and the mother participate in all major decisions involving the child. The mother and father must confer and make decisions together regarding educational, religious, medical and other major decisions for their child. The other type of shared custody is shared physical custody. With shared physical custody, the father and mother will share residential custody of the child. The child will go between the two parent’s homes on a set schedule either agreed upon by the parents or established by the court. Parents will share holidays, summers and breaks as well. Shared custody protects the child’s ability to continue developing strong, ongoing relationships with both parents. The court is to always keep the child’s best interests at the forefront when deciding custody disputes. If the parents are able to reach an agreement concerning a shared parenting schedule, courts will generally grant it. Otherwise,

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