August 24, 2017

Family & Divorce Blog

Family feud, Pfannenstiehl -style

By Attorney Steven D. Weil | as published in the Mass Bar Lawyers Journal

Update: The MBA’s Lawyer’s Journal just published a sequel to the article Attorney Weil wrote about the division of trust interests in divorce actions. The article can be found in the September edition of Massachusetts Lawyer Journal

Divorce disputes involving a spouse’s rights as a beneficiary of a third-party trust are often complex and bitterly contested. Typically, a beneficiary-spouse will argue that the settlor (parent) had no intention of subjecting the trust assets to a property division for the benefit of a former son-in-law or daughter-in-law, and that the terms of the trust expressly prohibit the Court from invading the trust for this purpose. The non-beneficiary-spouse will likely argue that he or she made a substantial contribution to the marriage, and that the family relied on the trust funds to live, such that a division of some portion of the trust principal is both warranted and within the Court’s authority to divide pursuant to G.L. c. 208, § 34. What is a Probate Court to do?

Pfannenstiehl – The Most Recent Controversy

In Pfannenstiehl v. Pfannenstiehl, the Appeals Court recently upheld a Probate Court decision awarding a non-beneficiary wife a substantial portion of a marital estate, which included her husband’s interest in a multi-million dollar irrevocable spendthrift trust established by the husband’s father.[1] The Probate Court valued the husband’s beneficial interest in the trust at approximately $2.3 million.[2] Throughout the marriage, the husband received distributions of income and principal, which abruptly ceased upon the eve of his filing for divorce.[3] The wife, who, at the urging of the husband and his family, gave up a military career and devoted herself to the care of the parties’ two special needs children, was told that the spendthrift provision of the trust prohibited the trustees from continuing to issue distributions to the husband.[4] [Read more…]

Should you keep the house in a divorce?

Often in divorce cases one spouse has a strong preference to keep the house. The desire to minimize transition for the children, to avoid a costly move, or to remain living among one’s established community are only some of the reasons given. However, keeping the family home may not be the best financial decision and often a divorcing spouse is unaware of, ill-prepared for, or ignores the potential economic implications of keeping the family home. In essence, one spouse is buying the home from the other and clients need to consider such purchase as if they were purchasing a new home.

Allowing one spouse to keep the home usually involves allocating to the other spouse a larger portion of savings, investments and other assets accumulated during the marriage. This is because the home is often one of the largest, if not the largest, asset in the marriage and courts will look to effectuate an equitable distribution of marital assets. Those other assets are likely to increase in value and may provide necessary retirement income in future years. In contrast, home values can stagnate or decline and offer little opportunity to provide an income stream. [Read more…]

January 23, 2013 – What Every Tax Professional Should Know About The 2012 Alimony Reform Law

(AND HOW IT AFFECTS YOUR CLIENTS IN 2013)

Join the Attorneys of DCDC’s Family Law Practice Group for the first 2013 installment of our “What Every Professional Should Know About the Law” Seminar Series to discuss how the recent alimony law changes may impact your clients. Learn practical tips about how tax and legal professionals can work together to better advise our clients and prepare them for the future. (Download Flyer)

A Presentation by
Michelle M. Raymond, Esq., Steven D. Weil, Esq. & Melissa Howitt, Esq.
of Doherty, Ciechanowski, Dugan & Cannon, P.C.
Wednesday, January 23, 2013 at 8:30 – 10:00 A.M.

Light breakfast will be served

Location: DCDC, 124 Grove Street, Suite 220, Franklin, MA 02038
www.dcdclaw.com – phone: 508-541-3000

[Read more…]

The Intersection of Employment, Business and Divorce

The Massachusetts Appeals Court recently upheld a Probate Court ruling in a divorce case involving a family owned business.  During their marriage, the husband and wife owned and ran the business together.  In their divorce, both the husband and wife sought sole ownership of the business.  The judge awarded the business to the husband and, on the husband’s request, entered an order prohibiting the wife from operating a competing business.  This is the first occasion in Massachusetts where such an order has been entered in a divorce case.  Non-competition agreements have long been the source of litigation and concern for employers and employees.  The imposition of a non-competition prohibition in the divorce context will only add to concerns regarding the scope, fairness and enforceability of non-competition provisions.  This case also demonstrates the overlap between employment, business and family law issues that often arise when a person who owns a business obtains a divorce.  Conversely, this case demonstrates the importance of business owners seeking to protect their business before marrying with prenuptial agreements.

At Doherty, Ciechanowski, Dugan & Cannon we have family law, employment law and business law attorneys who can help you with all of these issues.  For more information, please contact one of our attorneys.

No Sale, No Discount – Valuing A Closely Held Business in a Divorce

How do I value my husband’s shares in his family’s business? This issue frequently occurs in divorce cases where one or the other spouse derives his income from a successful small business. The stock of the business is not traded on a stock exchange, making it difficult to ascertain the value of the ownership interest. Typically, the spouse  who works in the business will receive the shares in the divorce. His continued employment in the business may generate the income used to pay alimony and child support. In addition, the shares may have substantial value as an asset to be equitably divided in the divorce.

Determining the value of an interest in a closely held corporation is one of the most difficult financial issues that a couple can face in a divorce. It often requires the services of an accountant or business valuation appraiser, with expertise in the field of business valuation. These experts generally apply one or more of several commonly accepted valuation methods to determine the value of the business. These methods include the adjusted net-income approach, the adjusted net-asset approach, and the comparable sales or market approach.  [Read more…]

Do I have the right to ask to see my spouse’s financial records prior to negotiating a divorce settlement?

Yes, Massachusetts’ Rules of Domestic Procedure, Supplemental Rule 410, requires a disclosure of financial information by both parties to a divorce action.  After the service of the complaint for divorce and summons, the court requires each party to a divorce action to produce three years of financial information to the other spouse within forty-five days.  This financial information includes, but is not limited to, tax returns with supporting documents, bank statements, retirement statements, pension statements, loan applications and stock accounts.  Additionally, each spouse must produce their four most recent pay stubs, as well as health insurance information regarding the cost and nature of the insurance which is available to them.  If a spouse fails to produce the required documentation after a request for the same, then the spouse seeking the information may request an order from the court to require the production of the required financial information.

If you have questions regarding the mandatory disclosure of financial information after service of the complaint for divorce in Massachusetts, contact us at Doherty, Ciechanowski, Dugan & Cannon, P.C.

Strained to the Limit: Massachusetts Probate and Family Courts

How Does that Affect Your Divorce?

With no immediate likelihood of hiring new judges or law clerks, the impact of losing twenty percent (20%) of Massachusetts Probate and Family Court judges and sixty percent (60%) of the law clerks will continue to have a significant impact on divorcing couples utilizing the Massachusetts court system for resolution of their cases.

In a system that saw 156,000 new case filings this year, the inability of judges and staff to keep up with the caseload is causing delays in the processing of filings and orders, delays in obtaining hearing dates, and increases in the amount of cases that judges must hear on their motion days. Due to the Court’s reduction in public access hours, following up on cases usually leads to attorneys having to travel to the court to obtain answers. This all leads to an increase in the cost for the average client. The attorneys are spending significantly more time in court tracking down files, personally hand-filing new complaints or motions, and waiting for their cases to be called for hearing before the judge.

There is a silver lining to all of these reductions and delays. More divorcing couples and attorneys are turning to collaborative law and divorce mediation as a cost effective alternative — Cost-effective in both time and money. Furthermore, the Probate and Family Court is encouraging these methods of resolution with more stream-lined procedures that will be rolling out in 2012. Before entering the overloaded court system, research whether collaborative law or divorce mediation are a good fit for your situation. To find out more information, contact Attorney Michael Doherty or Attorney Michelle M. Raymond.

Do I have to wait until the restraining order expires to see my children?

Additional information: My ex obtained a 209A restraining order against me in Worcester district court which grants custody and prevents me from seeing my children.  Do I have to wait until the restraining order expires to see my children?

While the 209A restraining order is in effect, you must follow all of the orders or risk criminal prosecution.  However, although the Worcester district court may issue a 209A restraining order which awards custody to one parent, the probate court may issue an order providing for custody and visitation with the child.  A probate court order for custody and visitation has the effect of superseding the district court order and changing any provisions relating to child custody and visitation.

If you have questions regarding visitation rights or child custody issues, contact the Massachusetts family law attorneys at DCDC Law for a consultation.

Our child custody attorneys serve Worcester County and represent clients throughout Massachusetts.

The Worcester County child custody lawyers at our firm are located in Franklin and Medfield and serve the Greater Boston MetroWest region and the neighboring towns of Bellingham, Milford, Upton, Hopedale, Holliston, Medway, Millis, Medfield, Norwood, Walpole, Sharon, Foxborough, Wrentham, Easton, Mansfield, North Attleboro, Norton, Plainville, Raynham, Taunton, Attleboro, Seekonk, Rehoboth, Uxbridge, Whitinsville, and Worcester.

The Impact of Remarriage on College Financial Aid

Some colleges are now requiring not only both parents’ financial information regardless of whether they are custodial or non-custodial they are also requiring each parent’s spouse’s financial information as well.  Have you planned for this in your divorce agreement?  For more information about financial aid see the article “Before You Say ‘I Do,’ Consider Financial Aid for College” by Todd Weaver, a college financial advisor.

If you have questions or concerns about how this may affect your situation, please contact Massachusetts family law lawyer, Attorney Michelle Raymond at mmr@dcdclaw.com or 508-541-3000.

Massachusetts Court Locations Adjust Public Office Hours

September 6, 2011

The Chief Justice for Administration and Management has announced new public office hours for many courts around the Commonwealth of Massachusetts.  Specifically, the Probate & Family Courts across the state will be adjusting their public office hours as follows:

“Registry counter services and phone coverage will be restricted after 3 p.m. Monday through Friday.  This applies to any court business EXCEPT emergency restraining orders and other emergencies.   These new hours of operation will become effective on September 19, 2011.” Read the official press release (opens PDF)

Does Massachusetts law allow a parent to withhold child support?

Additional information:If a parent refuses to allow the other parent visitation with the child, does the law allow a parent to withhold child support?

No, if a parent is denied court-ordered visitation, he or she does not have the right to withhold child support based on the inability to visit with the child.  Similarly, if a parent refuses to pay child support, the custodial parent does not have the right to withhold court-ordered visitation.  The parent seeking to enforce his or her rights under the court order must file the appropriate action with the probate court.

If you have questions regarding visitation rights or child support terms, contact the Massachusetts family law attorneys at DCDC Law for a consultation.  [Read more…]

Passage of the New Massachusetts Alimony Reform Bill

August 2011

Recently, the Massachusetts legislature passed the long awaited Alimony Reform Bill which is now awaiting signature by Governor Patrick.  Once Governor Patrick signs the bill into law, it will have significant impact on currently pending divorce cases and outstanding alimony orders in specific circumstances. Divorced couples will want to pull out their agreements with one question in mind – How does this law affect my alimony payment?   The bill  outlines the duration of alimony awards, prohibits the use of a second spouse’s income or assets in assessing an alimony award, sets a presumption that alimony will terminate upon attaining full retirement age, terminates alimony upon remarriage and certain cohabitation and considers child support in the determination of the amount of alimony.  The length of a couple’s marriage will now determine the length of time alimony is paid.  For marriages lasting more than twenty years, the courts may still have the ability to issue lifetime alimony awards but the courts are no longer required to issue lifetime alimony awards.

[Read more…]

What is Massachusetts law regarding the payment of child support for a child who is over the age of eighteen?

Child support may be awarded for a child eighteen years of age until the child’s twenty-first birthday if the child resides with the recipient parent and is principally dependent upon that parent for support.  Child support may continue through the age of twenty-three if the child continues to reside with the recipient parent and is principally dependent upon that parent for support due to the child’s enrollment in an educational program.  In setting a child support order for a child over the age of eighteen, the court must consider certain specified factors which include: the reason for the child’s continued residence with and dependence on the primary parent, the child’s academic circumstances, child’s living situation, the available resources of the parents, the costs of post-secondary education for the child and the allocation of those costs between the parents, and the availability of financial aid.

If you have questions regarding child support in Massachusetts, contact our Massachusetts family law lawyers for a consultation.

How Do I Take Control Of My Divorce?

For most people going through a divorce, this is the most out-of-control they have ever felt over their lives. Part of that overwhelming sensation of being out-of-control is when the court is deciding their fate – how their children will be raised, how their money or debt will be carved up and who will live in their house. Divorcing couples who submit their contested divorce to the court are passing over the control of their lives and children to overworked judges to make these important decisions. Now with the Massachusetts Probate and Family Court system losing 20 percent of its judges in 2011 alone, the judges will have even less time to focus on each case, many times less than 20 minutes in a courtroom. Thankfully, there are alternatives – Mediation and Collaborative Law which allow divorcing spouses to retain and rebuild control over their lives and children.

If you would like to learn more about how to take control of your divorce, contact Massachusetts divorce attorney Michelle Raymond to better understand your options.

 

How can a custody or child support judgment be changed or modified?

The parent who requests a change to the judgment must file a Complaint for Modification.  In order for a parent to successfully alter a judgment, he or she must demonstrate a material and substantial change of circumstances since the entry of the last judgment.  These changes of circumstances could include the loss of a job, an increased ability to pay, a child entering college, a child’s special needs, a parent’s inability to support the child’s relationship with the other parent or a parent’s inability to properly care for the child.

If you have questions regarding the modification of child custody or child support terms of your divorce, contact our Massachusetts divorce lawyers for a consultation.

What are the Dangers of DIY (Do-It-Yourself) Divorce?

There is a new dangerous trend of DIY Divorce packages that are appearing on the internet. These packages claim to provide for a minor fee all the required documents that a couple needs to complete and file a divorce in Massachusetts on their own. DIY Divorce is like DIY Electrical Repair . . . at some point you are going to get burned. Not only do many of these forms not contain the basic protections that should be in place, but they cannot explain how the laws apply to each spouse and their children. Each situation has its own unique challenges that legal counsel can assist the parties to understand and resolve in a manner that makes sense to them, not the person who wrote the computer program. The results from some of these DIY packages have been disastrous — many times leading to a divorced spouse having to claim bankruptcy or lopsided agreements that lead to years of court involvement.

If you are considering using these DIY Divorce packages, consider consulting divorce attorney Michelle Raymond to discuss your options, including collaborative law or divorce mediation.

Attorneys in Franklin Massachusetts and Medfield MA lawyers

The Massachusetts attorneys of Doherty, Ciechanowski, Dugan & Cannon provide legal services to Massachusetts businesses, families, and individuals in the practice areas of business law, criminal defense, divorce and family law, employment law, estate planning, personal injury, real estate, and litigation matters.

Our attorneys represent clients throughout Massachusetts and in every county of Massachusetts including Norfolk County, Suffolk County, Worcester County, Bristol County, Middlesex County, Plymouth County, Hamden County, Essex County and Barnstable County. Our attorneys represent clients in Massachusetts’ largest communities including the cities of Boston, Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy.

Our law offices are located in Franklin and Medfield and serve the Greater Boston MetroWest region and the neighboring towns of Bellingham, Milford, Upton, Hopedale, Holliston, Medway, Millis, Medfield, Norwood, Walpole, Sharon, Foxborough, Wrentham, Easton, Mansfield, North Attleboro, Norton, Plainville, Raynham, Taunton, Attleboro, Seekonk, Rehoboth, Uxbridge, Whitinsville, and Worcester.