Custody/Parenting Plans
Next to the actual decision to file for either a contested divorce or joint petition for divorce, custody-related issues may be the most emotionally-charged you’ll face in court. Our lawyers get called around the clock with questions relating to legal custody, physical custody, parenting plans and visitation. Here are the most common questions posed and our best general advice:
Q: I hear that Massachusetts favors women. Is it true that mothers automatically get custody of their children when the parents separate and divorce?
A: No! The Commonwealth of Massachusetts has no automatic preference for either mother or father, but they do look very closely at which parent will promote the welfare and best interests of the child.
Q: What factors will the judge look at when they consider custody?
A: They usually look at who has primarily taken care of the children during the marriage (washing, feeding, homework, bedtime rituals, etc.), and who has the work schedule which would best provide for the physical, educational, mental and emotional needs of the children.
Q: If my spouse is granted custody, will I get visitation rights?
A: In Massachusetts, the courts refer to the Parenting Plan. Here, the term “visitation” (which Attorney Pollack says is for aunts and uncles; not parents) is forgone and each parent is viewed to be the equal parent with responsibilities laid out in this “contract” between parents. Except in extraordinary situations, such as those with a history of abuse or neglect, both parents will have ongoing time each week to parent the child. The Parenting Plan will have structured rights and responsibilities for each parent spelling out certain days and times set out with some degree of specificity. Our lawyers pride themselves on structured clauses to include in your agreement. For an example of a vacation and holiday schedule, click here.
Q: Will custody always be settled when I get my divorce?
A: Divorce decrees don’t necessarily settle custody matters.
Q: Can a custody order be changed?
A: Custody orders are never permanent. Think about it – children grow and evolve; circumstances change. Once an order is entered by the court, the judge can always modify child-related issues when evidence is presented showing a substantial change in circumstances.
Support & Alimony
For parents, child support and spousal support can be a key issue in a divorce, marking the line between making it or going under. Here are the most common questions that our attorneys face and our best general answers:
Q: Who pays taxes on child support?
A: Child support is not taxable to the one who receives it, nor is it tax deductible by the one who pays it.
Q: How do we figure how much child support should be paid?
A: Massachusetts has Child Support Guidelines that are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances in a case. These Guidelines are based on the incomes of both parties, plus credits to whoever pays the health insurance and some other factors.
Reasons for deviation from the guidelines are, for example, a parent ordered to pay support that has other minor children and has insufficient financial resources available or a parent who may have extraordinary expenses such as travel-related visitation expenses, or a high amount of medical expenses.
Q: How long is child support paid?
A: By statute, support must be paid through the child’s 18th birthday. Support can be extended if the child is living in the home of a parent and is principally dependent upon that parent for support. The same is true for a child who is older than 21, but not yet 23 if the child is principally dependant upon parents for enrollment in an educational program.
Q: If I cannot see my child for parenting time, can I stop paying child support?
A: No – nice try. Denial is not legal justification for withholding support. Neither is lack of support a legal excuse for refusing the other parent time with the children.
Q: What if my former spouse claims they need more support in the future?
A: If the child support is set out in a court order, your former spouse can petition the court to increase support if they can show there has been a change in circumstances. Their remedy is to file a Complaint for Modification.
Q: Who pays taxes on alimony?
A: Normally, the person who receives the spousal support pays taxes on it as ordinary income. The person who pays the alimony gets to deduct that amount from their taxable income.
Q: What are the requirements for receiving alimony?
A: The person receiving the support must have a proven need and the person paying it must have the ability to pay it.
Q: Are there different types of alimony?
A: Yes – open-ended and non-modifiable alimony.
Q: What is the difference between the two?
A: Open-ended maintenance is open to review and non-modifiable is paid for exactly as long as is stated – no less, no more.
Q: If I am ordered to pay for 6 years and die in 2, what happens?
A: Maintenance will stop upon death of the payor.
Q: How does my ex-spouse protect their obligation to pay me alimony…what if they die?
A: The court order should contain provisions for life insurance to cover the life of the person paying the maintenance.
Q: Are prenuptial agreements an important consideration?
A: Yes, they could nullify all the rules relating to alimony.
Debt & Credit Cards
As you begin talking about divorce, you’ve likely heard the horror stories about one spouse who runs up $10,000 of debt on a credit card after filing for divorce and the other spouse has to pay. Another spouse tries to avoid paying child support by declaring bankruptcy. Here, we’ll tell you what you can do about this and questions on other marital debts.
Q: Are all debts incurred while we were married the responsibility of both of us?
A: Generally, yes. Unless the debt is based on money that is clearly being spent for purposes outside the essence of the marital contract.
Q: What about debt that my spouse incurs after I file for divorce?
A: It depends on whether they were served with the Complaint and summons. Rule 411 specifies that dissipation of assets is not permitted once served.
Q: What about the effects of bankruptcy on an obligation to pay a property settlement note?
A: The law states that a property settlement note is a dismissible debt in bankruptcy.
Q: If I file for bankruptcy after divorce, will I still have to pay child support and alimony?
A: Yes. Although bankruptcy can complicate matters, the law says that child support and alimony are not dischargeable in bankruptcy.
Insurance
Although insurance is designed to provide security, it can be one of the bigger causes of insecurity when a couple divorces. After finishing these questions and answers, you might see the need for continued, or even more, life insurance coverage:
Q: Should health insurance continue to cover the children and my ex-spouse?
A: Most policies provide that insurance continues to cover children until they are 21 or graduate from college. If you have more than one child, most likely the family plan kicks in and the cost of including your former spouse would not increase. Accordingly, it is common to provide for a former spouse until you either choose to remarry or the children are no longer covered.
Q: What is COBRA?
A: It is a law that says any company who has at least 20 employees must allow an ex-spouse to apply to their health insurance company for continued coverage in their name for additional years following divorce.
Q: My spouse is going to get different car insurance on the vehicle she is taking. With expenses so high during this divorce, can I just cancel the policy on her car?
A: Do not EVER cancel insurance while in the process of a divorce action. Moreover, make sure any new policy is in place before canceling a policy even if you have to double up on a monthly payment.
Q: Must I keep my former spouse as the beneficiary on my life insurance if I plan to remarry?
A: Unless you obtain a new court order, do not change what the court ordered. Most people do not understand that life insurance stands as security to either child support or alimony obligations – not an estate planning tool.
Tax Issues
The lawyers at The Massachusetts Family Law Group cannot overstate the importance of relying on the advice of a professional who knows your individual situation. Not only do tax laws change, but so do the interpretation of these laws. Consider the following questions a starting point on issues to research as it relates to taxes and divorce:
Q: How does marital status affect how I may file my tax return?
A: It is critical. If you are considered “married,” you may file as “married filing a joint return” or “married filing a separate return,” or “head of household.” If you are considered “unmarried,” your status will be “single” or possibly “head of household.”
Q: When may a married person living apart from a spouse file as “head of household?”
A: Generally when the following criteria is met: First, the taxpayer maintains a household for their dependent child; secondly, the household is the taxpayer’s home and the main home of the dependent child for more than half the year; third, when the taxpayer provides more than half of the cost of the household; fourth, when the taxpayer’s spouse was not a member of the household for the last six months of the year and fifth, when the taxpayer is entitled to claim the child as a dependent.
Q: When would it be advantageous to me to file as “head of household?”
A: This is for you to discuss with a tax professional.
Q: I’ve heard that I can be held liable for all the taxes if I sign a tax return even though my spouse actually prepared the return and earned all of the income. Is this true?
A: It can be. Generally, both people who sign a joint return are jointly and individually liable for any tax, interest or penalty due. This liability can also be extended after you are divorced as to returns that were filed before the divorce. You should be aware, however, of the “Innocent Spouse” rule. Speak with your accountant or tax professional about this.
Q: What if we filed separate returns while we were married?
A: Each spouse is responsible for only the tax due on their own return. Note, however, that in many cases the tax liability for the couple will be higher if separate returns are filed.
Q: Somebody told me that if my spouse pays for the house it could be determined by the IRS to be alimony and that I would have to pay tax on that. Is this true?
A: This is a very complex area of tax law. Based on the agreement between you, there are rules which regulate how instruments can be drafted in such a manner that it is not clear what the money is for. For example, if something is called maintenance, but the order says it is to be reduced when the child graduates, the IRS may take the position that it was really child support for all the years in which it had been paid and this would change the tax treatment of those monies.
Q: What is the child care credit?
A: When parents of children are divorced for the last six months of the year, the parent who has custody for the longer period of the year is entitled to child care credit.
Q: Can I deduct my costs of getting divorced?
A: Yes. Although you cannot deduct legal fees and court costs for getting a divorce, you may be able to deduct legal fees relating to tax advice connected to the divorce.
Separation Agreements
You’ve probably heard the phrase, “We’re separated” thousands of times, but never – until now – knew what that really meant. The following series of questions and answers will help you understand:
Q: What is a separation agreement?
A: It is a contract between spouses in which they agree to resolve such matters as property divisions, debt, custody and support when they separate from each other.
Q: Who prepares a separation agreement?
A: It is best to have an attorney prepare one for you.
Q: Do I have to have one?
A: The law does not require a couple to execute an agreement but it is a wise idea if there are debts, children, support claims or property involved and the parties want to settle these matters in writing.
Q: Can I get my spouse for contempt of court if they break the promises in the agreement?
A: Technically, no but…since the agreement will have likely been made a part of a court order, then yes (it’s the violation of an order that give you the right to file a complaint, not the breach of said agreement).
Q: What are some points to include in our agreement?
A: Check out our “safe list” of clauses to include.
If you are contemplating divorce or are currently involved in the process, undoubtedly you fear failure and the unknown. You are not alone. If you don’t know where to start or what to do, contact us.
Throughout Western Massachusetts, our divorce lawyers and family law attorneys zealously represent clients in Hampden, Hampton, Franklin and Berkshire counties.
If you anticipate a court appearance in Springfield, Northampton, Greenfield or Pittsfield, call (800) 910-DIVORCE or contact us for a no-obligation consultation.
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