Danger! Danger! Danger! How to avoid a Restraining Order!

November 27th, 2009

It happens over and over again. The subject of divorce comes up -or- a divorce case is filed and bang! The other spouse runs out and convinces a judge that they are in fear of “imminent physical harm” and gets an ex parte (without notice) restraining order. Unfortunately, there are too many instances of serious domestic violence in our society. But, in many instances the only real fear involved is the fear that the Judge has of bad publicity! Viewed from the standpoint of the judge - if he has 1000 people asking for a restraining order and he turns them down and only 1 party goes “postal” the Judge’s picture will be on the front page of the papers. There are many judges that will rarely turn down any request for a restraining order no matter how flimsy the basis! The mere presence of a restraining order can prevent one from working in certain fields (notably education and health care), make visiting with your children much more difficult and a vindictive spouse (or ex-spouse) can even use alleged violations to have you incarcerated!

There are a number of ways to fight a restraining order:

First - Avoid being alone with your spouse! If you must engage your spouse in conversations, do so in a public place and try to keep them calm! If your spouse shows signs of losing it, leave! When the police are called it is usually the man who is taken away.

Second - If you can’t remain calm - don’t contact your spouse and if you find yourself losing it - leave!

Third - Never threaten your spouse or assault your spouse physically in any manner - this includes breaking things and throwing things (The cases of things being thrown in the kitchen are legion!)

Lastly, if your spouse does obtain a restraining order - strongly consider fighting the restraining order. An experienced attorney can review the facts of the situation and give you an opinion as to whether you have a chance of convincing the Court to drop the restraining order.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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What Happens to the House?

November 3rd, 2009

One of the most common questions that we get from divorce clients is: “What will happen to my House if I get divorced?”. Courts usually have the power to order the sale of the marital home. However, the status of the marital home during and after a divorce case depends on whether there are children residing in the home and whether one party can “buy out” the interest of the other or there are other assets to offset the equity in the home

The first consideration is usually whether minor children are residing in the home. If there are children living in the house and it has been their home for a period of time, the Courts are usually very reluctant to order the home sold (absent extenuating circumstances - such as a severe mortgage delinquency or pending foreclosure) and the children uprooted. This is especially true earlier in a divorce action. Usually, the Court will give the party residing in the house a chance to come up with a plan to make the mortgage payments and retain the property. Judges would much rather give the parties the time to craft their own plan and on their own terms as to the disposition of the marital home than enter an order for it’s sale. If the case goes to trial and the Judge is forced to make a decision as to the sale of the marital home, it is likely that the Court will still not order the marital home sold until the children are emancipated. It is usually said that the non-resident spouse (usually the father) has an “illiquid asset” when there are children residing in the house. However, it is possible that the Court would offset the equity in the marital home against the value of other assets (such as retirement assets).

When there are no minor children residing in the house, the immediate sale of the marital home is much more likely. This is especially true if the equity in the marital home represents the primary marital asset or bulk of the marital assets. If there are substantial other assets, they can often be utilized to offset some or all of the equity in the marital home. Although judges are usually amenable to giving either spouse the opportunity to “buy out” the other spouse’s interest in the home, they are also cognizant of the fact that this is often impractical.

If a “buy out” is to happen, the equity in the home must be established. Certified real estate appraisers are often utilized. The appraisal(s) are then coupled with a formula (such as 50-50) to establish each spouse’s interest. When the home is sold, the valuation is usually straightforward. Assuming an arm’s length transaction, the value is the sales price.

Lastly, it should be mentioned that in the current soft real estate there is a greater reluctance to sell real estate. Even though the parties agree to sell the marital home or the court orders it sale, the property may remain on the market unsold for an extended period of time.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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My Spouse Won’t Give My Stuff Back! What Do I do?

October 19th, 2009

Dividing relatively small value items of personal property (that junk in the house) is an area where the legal system often performs poorly. Oftentimes, the monetary value of these items doesn’t justify the legal costs incurred in their retrieval. In Court, the division of these types of items is usually the last thing to be addressed. Every attorney has a horror story to tell about the case where many torturous hours were spent between two litigants arguing over every small piece of furniture, silverware and tools.

A spouse who is no longer residing in the marital home (either because they voluntarily left or they were put out by the Court) is at a distinct disadvantage in identifying, dividing and retrieving these types of items. If you can divide these small items between yourself and your spouse without the involvement of the Courts you will save a great deal of expense and hassle. If you cannot do this on your own, start by preparing a complete and comprehensive list of everything that you want to get back. Don’t wait to go to Court. Show that you are serious about retrieving these items and that this is important to you by having your attorney forward the list to your spouse’s attorney before you go to Court. Don’t wait for the last minute and be faced with a decision as to whether to settle the case or fight for the bed! Also, don’t tie up valuable attorney time by wasting time on small value items.

Be flexible and be willing to trade-off different items. Don’t ask for all the televisions in the house - but try to get at least one. Try to get something in each class of item - a vcr, a stereo, a dvd player, some silverware, plates etc.. . This way you won’t have to start from scratch. The same with furniture - divide it room by room. If you don’t have space for an item or it will be difficult to move, seriously consider whether you really want it back. Do you really need a lawnmower and garden tools when you’re moving into an apartment? If you are not allowed back in the house because of a restraining order - ask to inventory the items in advance in the company of a police officer (called a detail - and be prepared for a cost - usually a minimum of 3-4 hours). If you have pictures with sentimental value to divide and cannot agree - offer to split the costs of making a second set (this is usually what judges will do anyway). Decide what you really need and what you can live without. Lastly, seize the opportunity to reduce the clutter in your life and get a fresh start!

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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Annulment or Divorce ?

October 7th, 2009

Generally, it is wiser to file for a divorce than an annulment. The requirements to obtain an annulment vary by jurisdiction and can often make the prospect of obtaining an annulment “iffy” at best. On the other hand, almost anybody that desires to get divorced will be able to obtain one - although not necessarily on the terms that they want.

For instance, the Commonwealth of Massachusetts requires one of two grounds to grant an annulment - either incest or fraud. I won’t go into the incest grounds in detail here. But, it should be sufficient to say that incest isn’t an option for most parties. That leaves parties with the fraud option. However, it is a very specific type of fraud - “Fraud in the inducement”. This means that but for the fraud the marriage would not have taken place. Most judges aren’t going to grant an annulment for minor fraud - despite the fact that a party might testify that they would not have married the other spouse if they had known about the “fraud”. On the other hand, Judges usually have far less difficulty in determining that a marriage has ended and granting a divorce.

The other difficulty is that the party whom is alleged to have committed the fraud may not take the allegations sitting down and protracted and expensive litigation may result from a relatively simple situation.

The bottom line is to not assume that just because the marriage is short and there are no children that an annulment will be granted - It may be far easier and simpler to obtain a divorce.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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Reasons for a Legal Separation Instead of a Divorce

October 7th, 2009

Many people are under the misconception that they are required to “legally separate” before they can get divorced. In most jurisdictions, this is no longer required. If you want to get divorced, you should file for a divorce and not a legal separation. Filing for a legal separation first will only increase the time and expense before the divorce is final.

However, we do run into several recurring situations that lend themselves to a filing of a separate support action (legal separation).

The first and most common situation is when the spouses have separated and one party needs to get support (child support and/or spousal support) from the other - but doesn’t want to file for divorce.

The second common reason is when a spouse has a drug and/or alcohol problem and the spouse filing for legal separation wants to send them a strong message “clean up your act or else”.

Although less common these days, devout Catholics will file for a legal separation because they don’t believe in divorce.

A legal separation should also be considered when the marriage is a little short of ten years. At the ten year mark, a spouse is entitled to one-half of the other spouse’s social security upon retirement (if they haven’t remarried and it’s more than they would be entitled to on their own social security claim).

There can also often be various strategic reasons to file for a legal separation instead of a divorce (such as if the other spouse has a new partner and will probably want to accelerate the divorce process).

Lastly, you should be aware that Courts will usually not divide property as part of a legal separation (although this doesn’t prevent the parties from agreeing to divide property between themselves) and that in most jurisdictions it is possible to counterclaim for divorce when one party files for separate support. Therefore, you might have effectively filed for divorce anyway!

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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I “lost” (Can’t Find) my Spouse - Can I Obtain a Divorce?

July 25th, 2009

On occasion, a spouse will separate and relocate without telling or notifying the other spouse. Most Court systems have a provision for granting a divorce when you cannot locate your spouse. The Court will usually have a procedure that allows service by publishing and mailing (to the last known address) notice of the divorce. Although the Court may decline to enter substantive orders (such as alimony or child support) without the presence of the other party, the divorce itself will almost certainly be granted.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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Do you Really Want to File for Divorce 1st?

July 19th, 2009

There is no “one size fits all” answer as to whether you should be the first to file for divorce. There are various reasons why it may or may not be to your strategic advantage to be the first to file. You might even think of it in sports terminology: Do I play offense or defense?

Some of the reasons that you may want to file first include:

1) A likely decision by the Court that is favorable to what you are seeking;

2) A need to finalize the divorce as soon as possible to allow for remarriage;

3) A psychological need to end the marriage as soon as possible in order to move on with your life;

4) A need to send a clear and unequivocal message to your spouse that “the marriage is over and that there is no hope for reconciliation”;

5) A need to force your spouse to vacate the marital domicile;

6) A need to put into place orders to protect marital assets;

7) A need to obtain orders for alimony or child support;

8 ) A need to obtain an order for child custody or to ask that you be allowed to remove the children from the current state of residence;

9) A need to expedite the sale of a marital home or other marital property.

Conversely, some of the reasons that you may not want to be the first to file for divorce include the following:

1) A likely decision by the Court that would not be favorable to you (and the possibility that you might be able to arrive at an agreement with your spouse that would be signifcantly better for you than what the Court would order in your circumstances);

2) Situations where the current support being provided by your spouse is more than you could reasonably expect the Court to order;

3) When your spouse is gravely ill and you want to preserve an interest in their portion of the marital estate;

4) Situations where your spouse is in a “hurry” to finalize a divorce (either for psychological reasons or for a desire to remarry) and you gain a tactical advantage in negotiating an agreement from their haste to resolve the matter as quickly as possible;

5) When you believe the marriage is still salvageable.

With the exception of the analysis of your particular situation and likely outcomes by the Court, most of the above is fairly straightforward. An experienced divorce attorney that understands the tendencies of the Courts and judges in your particular jurisdiction should be able to study your particular situation, perform this analysis and advise you as to your best course of action.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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Bad Economy? Why it Might be a Great Time to File for a Divorce or Modification!

July 7th, 2009

I just read an article stating that the divorce rate is slightly down because of the economy. This is true. However, the Courts and attorneys that practice family law are busier than ever because people are reopening old support orders and filing for contempts as jobs are lost, incomes decrease, and asset values decline. Additionally, cases are being fought and litigated much harder and more aggressively as parties fight over an ever decreasing pie.

For some people (usually men), this is a great time to file for divorce. If you are already paying alimony or child support you might even consider filing for a modification. Alimony and child support orders are almost always based on current income. If you are unemployed or your income has decreased substantially, alimony and/or child support should reflect this and you should be paying less. Many people fail to have the Courts reduce their support obligation when they lose their jobs or their income decreases (it doesn’t automatically go down - you must go back to Court!) and end up with large arrearages. If your income subsequently increases, the party receiving the support will have to refile and bring you back to court to increase the support. Many (if not most) support recipients fail to do this. They usually don’t even know that the income of the payor has increased! I have seen many cases where support orders are based on incomes that are a fraction of the payor’s current income.

This becomes especially important in alimony cases. Depending upon the judge, alimony may be particularly difficult to change. If the alimony order was based on a period during which the payor’s income was low, it may be very difficult for the recipient spouse to obtain an increase.

Lastly, the value of assets that are usually retained by men in property settlements (such as a family business or stock options) may be temporarily depressed in a slow economy and therefore the wife would receive a smaller share of other assets to accomplish property division.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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How Long has your Attorney been in Practice?

July 3rd, 2009

You wouldn’t want to have major surgery performed by an inexperienced surgeon. Why would you want to have an inexperienced attorney represent you in your divorce?

Don’t assume that just because your attorney looks older that he is experienced. In the day of evening law schools, there are many attorneys for whom law is a second career. An attorney that has nothing to hide will welcome questions such as “When did you pass the bar?” and “How many years have you been practicing as an attorney?”. If the attorney doesn’t give you a satisfactory answer, look elsewhere.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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Too Much or Too Little Child Support? (State Child Support Guidelines)

June 30th, 2009

Most states have child support guidelines. These are formulas that the courts of a particular state will use to determine a child support amount. While the elements of the formula will vary by state, the most important factors are the incomes of the parties and number of children. The formulas will usually also include some type of adjustment for health insurance, child care costs and sometimes other expenses.

Judges are usually empowered with discretion to vary from these formulas. Depending upon the particular judge and jurisdiction, this may or may not happen. If you think that your particular situation merits a variance from the formula amount, you should thoroughly discuss the matter with your attorney and decide whether it is worthwhile to present your arguments to the Court. While the Court may not grant your entire request, the Judge may make some type of favorable adjustment to the amount indicated by the formula.

Common arguments to vary child support from state child support guidelines include tax issues, unreported income, large and unusual business expenses, prior child support orders, large and unusual personal expenses of a parent, children’s educational expenses, time spent at college, health and medical issues, other ways in which the non-custodial parent is supporting the child(ren), the amount of time the child(ren) are in the care of a particular parent, unusual travel expenses for visitation with the children, imputation of income; and the interplay of alimony and child support. Judges also usually have the discretion to determine who can claim any income tax exemptions and/or tax credits associated with the children (or at least adjust the child support amount to compensate for these exemptions and/or tax credits).

An experienced divorce attorney will be able to evaluate your particular situation, tell you the particular tendenices of an individual judge and determine what types of arguments might be favorably received by the Court.

Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com

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