No matter who initiates the divorce or if it is decided by mutual agreement, getting divorced is difficult. It represents a dramatic change in your life and is a loss. If you have children, we know you are concerned about the impact of divorce on your children. We work with you and the particulars of your situation to assist you, protect your rights and help you to serve your children’s needs as you go through the process.
The statute governing the division of assets provides that all assets, no matter how or when acquired are marital assets (“marital property” or “marital assets”). They are subject to “equitable division” when you divorce. This means a fair division in consideration of a number of factors listed in the statute. It is not always equal and certainly does not always seem fair to either party. Courts look at many factors in deciding property division including:
- Marriage length
- Conduct of the spouses during the marriage, particularly financial conduct or misconduct
- Ages of the parties
- Health of the parties and the children
- Employability and vocational history
- Occupation of the parties
- Income of the parties
- Needs of each party including the standard of living during the marriage
- Estate or assets of the parties
- Financial contribution of the parties
- Non-financial contribution including homemaking and child care
- Opportunity of the parties to acquire future income and assets
- Present and future needs of the children of the marriage
An equitable division of assets requires a synthesis of these factors to determine what division of assets (and liabilities) is fair and reasonable under the circumstances. In long term marriages, asset divisions are often equal or close to equal. Some factors that have suggested differences include the contribution of significant premarital assets, family gifts or inheritances.
Tax considerations are important in the division of assets. For example, there is no tax associated with the division of a cash bank account. On the other Tax considerations are important in the division of assets. For example, there is no tax associated with the division of a cash bank account. On the other hand a brokerage account may contain a portfolio of stock with a low tax basis. This means to convert that stock to cash, the owner may have a tax liability which could be taken into consideration in determining an equitable division of assets.
Some assets are complex and require an expert to provide valuations. We often prefer to jointly engage experts with the other party to lower the cost, retain control over the process, reduce the possibility of a “hired gun” and do our best to ensure that the parties will agree to the expert’s opinion.
A court can order alimony from one spouse to the other. We have significant guidance from the governing statutes and relevant case law but the primary factors in determining alimony are the needs of the recipient and the obligor’s ability to pay. When there are dependent children, there is an important relationship between alimony and child support.
The statute requires orders for child support when there is a dependent child. In Massachusetts, unlike a number of other states, if a child is enrolled in college, they remain dependent until they graduate from college. There is a federal mandate that each state must establish child support guidelines and revise them every few years. Our most recent version became effective in 2021.
The child support guidelines do not apply if the combined income of the parents exceeds $400,000 per year but can be used by the court in the judge’s discretion. The court and also deviate from the child support guidelines formula for a number of reasons set forth in the child support guidelines. We try to arrive at child support provisions that work for each family, taking into consideration any unusual expenses. We also consider the relationship with alimony to determine the ideal formulation for the family.
While Massachusetts now recognizes same sex marriages, there are many couples who are breaking up but who have not married. Domestic partners do not have rights under the laws of marital dissolution. If they own property together, property law may govern their rights and responsibilities when it comes to dividing jointly held assets. Sometimes, one party owns property and the other contributed or received promises during the relationship. The law of equity may be applied to address these rights. This often applies to same sex relationships that have not had the benefit of marriage or other domestic partnerships.
After the case is resolved, circumstances can change and we help our clients to modify their existing judgments to meet their changing needs. Whether it was an amicable settlement and creative modifications are needed or whether there is a material change of circumstances necessitating a modification to the agreement or judgment, we can successfully counsel on a variety of options.
If a party is subject to a valid court order and that party fails to comply with the terms of the order, the legal remedy is a Complaint for Contempt. While we always try to resolve any post-divorce matters, including contempt actions, by agreement before filing a new court case, when that is not successful, we will file a Complaint for Contempt. If the court finds that there was a clear and unequivocal order and a clear violation, a party may be found in contempt of court. The court then has a number of remedies. This could include an order compelling a party to comply with the order; an order that the guilty party pay the moving party’s reasonable costs and counsel fees to seek enforcement; interest on an overdue financial obligation and even a jail sentence. At Graff & Dawson, we will pursue contempt and enforcement orders when a party to the action is not in compliance with an agreement or court order.