Divorce and Family Court Financial Statements: What we love and hate about them!

Each party in a divorce must complete a financial statement form and file with the Court to get divorced in Massachusettsit’s required.  Yet the financial statement form comes with little if any instructions.  Most clients and their attorneys hate these forms because they’re time consuming and painful to complete. However, learning why the form is necessary and how it’s used may make you love (or at least not hate) the form!

7 tips for completing the family court financial statements:

  1. The Court financial statement form incorporates the concept of full disclosure of income, assets, expenses, and liabilities. Why?  Because in divorce you are dividing or reallocating income, assets, expenses and liabilities, and can’t do so without knowing what those are.  The Court financial statement form that each party completes, lays it all out there for both parties to see.  This allows the Court to be sure that the parties have a shared understanding of their finances, and to determine if an agreement with respect to those finances is fair and reasonable.

Continue reading “Divorce and Family Court Financial Statements: What we love and hate about them!”

The Lion and the Lamb

Many of you may know that my mother, who is a retired college Art History professor and an incredibly fine artist (some of her work adorns our office and much of it my home), has designed all of my office holiday cards for many years. Each design for each year’s card is hand drawn by my mother before being incorporated into the holiday card. My mother is now 87, and did this year’s card too!

Copyright 2013, Marilyn M. Levitt, all rights reserved
Copyright 2013, Marilyn M. Levitt, all rights reserved. Original artwork by Marilyn M. Levitt and cannot be reproduced without the written permission of the artist.

I have had many wonderful responses from clients and business associates to my mother’s holiday cards. In a world where everything sometimes feels too much the “same”, having a holiday card that is personal and unique each year has been an important component of how our office sees itself, in striving to provide personal services to each of our clients for their individual and unique needs.

One of my mother’s past cards featured a lion and a lamb – this holiday card appears with this blog. A client of mine was particularly taken with this holiday card, and told me that the card spoke to him. When asked what he meant by that, he said he saw the dichotomy between the lion and the lamb – to use his words, clients and/or attorneys can be “reasonable”, or they can be “strong” in their approach to a case and resolution. He didn’t see the holiday card as depicting ferocious vs. fearful, or even peaceful co-existence, but rather as representative of the two personas of what clients are “buying” from attorneys—and that creation of a balance makes for the best resolution. The client felt the card was simple but had a richness to it, and that its message resonated with him while going through the experience of divorce, as he sought a reasonable approach for all involved backed by the (lion’s) strength when appropriate.

Clients speak in many powerful ways if you listen. In thinking about my client’s comment regarding the holiday card, I realized how important it was for him to not just have legal representation and an advocate, but also to have representation and advocacy that comes with understanding and compassion and balance. It isn’t always so easy – and perhaps some clients want just the lion! However, divorce is not one-sided – there are always two parties with different needs and interests. Considering not just your own needs and interests, but those of the other party, and taking a balanced approach almost always results in a better negotiation and outcome.

Divorce is difficult and painful. We all know that. Yet you and your attorney don’t have to be solely lions or (the more passive) lambs. Out of court dispute resolution processes such as mediation and Collaborative Law, often provide a better environment and approach for bringing both the lion and the lamb “to the table” in the same room at the same time. Try it. You might find that the lion won’t eat you, and the lamb won’t get eaten. Instead, you will have a good balance for reaching a settlement that you, and your children and/or family, can live with and with which you can find peace — which is, after all, the message that comes with a holiday card.

Copyright 2014, Karen J. Levitt, all rights reserved.

Alimony Durational Limits Part III — What Happens When I retire?

One of the key reasons that Massachusetts reformed its alimony law in the Alimony Reform Act of 2011, was because many people thought it was unfair that the Court could award “lifetime alimony” in divorce cases.

Alimony payors found lifetime alimony to be unfair because they were required to pay alimony long after they had retired, and had less income than when they were working. Retirees often found themselves living on a fixed income but paying a large alimony obligation based on their former income. However, when retirees approached the Court to lower their alimony payments, it was always uncertain what would happen. On the other hand, the spouse who was receiving alimony often thought it was unfair to cut off alimony just because their former spouse had retired. This was especially true where the recipient spouse had relied on receiving a certain amount of money, and may have bargained for a different settlement if they knew alimony would be lowered or terminated when their former spouse retired. Thus, it was no surprise when the legislature included language in the new alimony statute to address this frequently litigated issue. The law in Massachusetts now provides that in most cases, alimony will terminate when the payor reaches retirement age (which is defined as the payor’s full Social Security eligibility age -you can find that out on the Social Security Administration website, it is based on date of birth). Note that the statute specifically applies the rule to general term alimony, but not to the other three types (see my previous blog “The New Massachusetts Alimony Reform Law of 2011– What Do You Need to Know?” regarding the other types of alimony).

The new law states that a payor’s ability to continue to work after retirement age is not itself a reason to extend alimony. However, at the time of the initial alimony judgment, the Court can order alimony beyond retirement age upon written findings for good cause shown. The Court can also extend alimony beyond retirement age for good cause shown, with a finding of a material change of circumstances and reasons supported by clear and convincing evidence. Post-retirement alimony will most likely be difficult to get, and the circumstances which might warrant an order or extension beyond retirement will have to be reviewed on a case-by-case basis. Some possible reasons could be the advanced age of the parties at the time of the divorce (i.e. they are close to retirement age or even beyond retirement age at the time of the divorce), the disability of the recipient spouse, or unforeseen significant changes that occur after the divorce. Some judges have been ordering alimony even after the payor reaches their full Social Security eligibility age, if the payor is still working full time and the recipient still has a need for support. Overall, an award of post-retirement alimony is more likely at the time of the Divorce than it is after the Divorce, but in either situation, the Court will have to be persuaded using the applicable standards set by the new law that alimony should be awarded beyond the age of retirement.

Getting A Divorce? How Do I Divide Pension and Retirement Accounts?

If you are going through a divorce, or even considering initiating the process, you should be aware that the financial ramifications are likely to be significant, and the legal issues involved may be complicated. One area that will need to be addressed is how any pension plans or retirement accounts that you or your spouse are or will be entitled to will be divided.

Get professional advice regarding the division of retirement accounts and pension plans in divorce.

Some aspects of a divorce are easier to steer through than others. Many of the technical aspects of dividing retirement accounts and pension plans in divorce are not familiar to the general public, and many retirement and pension plans are complicated especially governmental and military plans. Court orders are usually required to divide IRAs, 401(k) s, and pension plans or other retirement accounts; the type of court order depends on the type of retirement being divided. The court order necessary may simply be your court approved divorce agreement that outlines the terms of the division, upon which the institution holding the retirement funds will rely; or a special court order signed by a judge that directs the plan administrator on how to divide the retirement accounts or pension plans may be necessary. However a special court order is necessary for most private retirement accounts such as 401(k) s and pension plans, and is called a Qualified Domestic Relations Order (QDRO); a similar special court order for state and governmental retirement and pension plans may just be referred to as a Domestic Relations Order (DRO). Your divorce attorney can advise you regarding the division of retirement accounts and pension plans and whether any special court orders will be necessary in your circumstance; if a special court order is necessary your attorney can refer you to the appropriate professional to prepare those documents.

The importance of dividing retirement accounts and pension plans properly is not just that each pension plan administrator has different rules that apply that need to be complied with when dividing those assets in divorce. There are also applicable tax laws. Division of retirement accounts or pension plans in divorce are generally non-taxable events to either the transferor or the recipient. However failure to comply with plan or IRS rules can result in serious tax consequences for one or both parties; this can be avoided by getting proper legal and other professional advise during your divorce.

Weigh your options carefully with your divorce attorney, and consult with pension and/or financial professionals as well where appropriate.

It is important to understand your options when considering the division of retirement accounts and pension plans, including date of division and the formula for division. For example, pension plans often include other components such as pre and post-retirement survivor benefits, and cost of living adjustments. Using a pension specialist can help the parties and their attorneys understand the retirement or pension benefits involved and how best to divide them. In addition, in situations in which the divorcing spouses are considering trading off the value of a taxable asset for the value of a potentially non-taxable asset (e.g. a retirement account for house equity), a financial tax advisor can be extremely helpful in providing additional guidance. It may seem like a lot of extra effort and there will be additional cost in using a pension specialist or financial professional, but keep in mind that getting all the details right is worth the time and trouble to make sure everything is handled correctly. Your case may not be that complicated, or require any additional experts; but you need to be sure you get educated about the division of retirement accounts and pension plans in divorce so that you can make an informed decision and understand all the ramifications even after divorce. Pension and retirement accounts are valuable assets that are important to protect and divide equitably in divorce.

Alimony Durational Limits Part II — When Does the Alimony Clock Start Ticking?

In the law, different fact scenarios can make what should be an easy determination a hard one.

Take the durational limits of the Massachusetts Alimony Reform Act of 2011. At first glance, there seem to be very easy calculations — the duration of alimony is based on the length of the marriage. For example, under the new law, in a marriage of more than five but less than ten years, alimony should last no longer than 60% of the number of months of the marriage. Simple, right? Not so fast. The durational timeframes become less clear after a careful review of the statute. Putting reasons for deviation aside, one question that has arisen is: when does the clock on alimony begin to run? Often in the early stages of a divorce case, one spouse begins to pay alimony to the other under a Temporary Order. The time between the Temporary Order and the Final Divorce can be many months, and sometimes years, so does the clock begin to run during the Temporary Order period, or does it start at the time of the Divorce Judgment? From the payor’s perspective, it seems unfair to pay alimony for a year (for example) under a Temporary Order, and then have to pay it for the full 60% number of months once the Divorce Judgment enters. From the recipient’s perspective, temporary alimony is frequently paid to help maintain the status quo and preserve marital assets, and the recipient should not be penalized for that pre-divorce period by a shortened alimony order after the divorce.

The Massachusetts Supreme Judicial Court recently weighed in on this very issue. In Holmes v. Holmes, 467 Mass 653 (2014), the Court determined that the provisions of the new statute do not allow temporary alimony orders to be included in calculating the duration of alimony based on the length of the marriage. The Court noted that the statute allowing for the payment of temporary alimony (M.G.L. c.208, §17) was not modified or even addressed in the Alimony Reform Act. The Court determined that the Legislature intended the durational limits of the new Act to only apply to alimony that arises from the issuance of a Divorce Judgment –what is now known as “general term alimony.” Since temporary alimony is not general term alimony, the durational limits do not include periods where temporary alimony has been paid. However, the Court also ruled that in circumstances where temporary alimony is paid for an unusually long period of time or where the alimony recipient unfairly delays the final judgment in order to extend alimony, the trial court can consider this in determining that alimony should be paid for a shorter period of time than the presumptive maximum duration. So while we now have one questioned answered regarding the duration of alimony, there are other facts and circumstances which dictate how long alimony will last. In upcoming blogs, we will look at other durational issues, including termination upon retirement, the impact of cohabitation on alimony, and deviations that are within the Court’s discretion.

Between a rock and a heart place

From time-to-time we have guest bloggers post on our site. The views, opinions and positions expressed within these guest posts are those of the author(s) alone, and do not represent those of the Levitt Law Group.

When a marriage is over each member of the couple is often left with complicated feelings ranging from sadness and loss to anger and frustration. Yet the process a couple chooses for a divorce can set the stage for their future relationship. Out of court processes such as Mediation and Collaborative Law offer clients a supportive opportunity to work together, communicating their needs, interests, and goals in a clear and open manner.

As a person is contemplating the future, it is essential to feel financially and emotionally secure. Yet as each person works to protect his or her own interests and achieve what is “fair,” trust may break down as the couple feels overwhelmed and emotionally torn. These are the times when a person can feel stuck between a “rock and a heart place”―trapped between practical legal decisions and the desire to do what “feels right” by protecting oneself and those one loves and cares about.

hear rockThese competing interests can leave a person feeling conflicted about standing firm or giving in to the needs or expectations of a partner. Family and friends, in an effort to be supportive, can also add pressure when they have strong opinions.

If the couple shares children, other complex feelings and issues may arise. Despite the end of the marriage, the role of a parent does not end with a divorce decree. Continuing to parent children post-divorce involves good communication, openness, and flexibility― the very elements of a relationship that often break down at the end of a marriage. Here is another place where there are complex needs that may leave a person feeling unsettled.

Mediation and Collaborative Law offer helpful ways to handle these difficult moments by encouraging clients to navigate legal issues while attending to emotional concerns as well. When clients have a sense of control over the outcome of their negotiations, they no longer feel stuck between a “rock and a heart place.” By using a process that comes to a close with dignity and respect, there can be an experience of peace and hope for the next chapter in each person’s life.

About the Author
Gina Arons, Psy.D is a clinical psychologist with over 25 years of experience working with children, adults, couples and families. Dr. Arons is a Collaborative Law Coach and mediator, as well as a consultant to attorneys, mediators and their clients. She serves on the board of the Massachusetts Collaborative Law Council and is a member of the Massachusetts Council on Family Mediation and The International Academy of Collaborative Professionals. Dr. Arons maintains a private practice in Lincoln, MA and can be contacted at ginaarons@gmail.com

Alimony Durational Limits — How Long Will I have to Pay?

When spouses divorce, a very real concern on both sides is often: how long will alimony last?

Over the years a lot of time and money has been spent in divorce cases fighting over how long alimony should last.  The Massachusetts Alimony Reform Act of 2011 has provided us with some guidelines for just how long alimony is payable, and it is based almost entirely on the length of the marriage.  Basically, the longer the marriage, the longer alimony may be payable.   Specifically, the time limits are as follows:

Marriage Length

Alimony Duration

Less than 5 yearsNo more than 50% of the # of months of marriage
Between 5 and 10 yearsNo more than 60% of the # of months of marriage
Between 10 and 15 yearsNo more than 70% of the # of months of marriage
Between 15 to 20 yearsNo more than 80% of the # of months of marriage
More than 20 yearsNo specific durational limit – can be indefinite

For example, if the marriage lasted four years, or 48 months, alimony should be awarded for no more than 2 years or 24 months. However, it should be noted that these durational limits are in place in cases where there is the traditional general term alimony. If there is another type of alimony being paid other than general term alimony, there is most likely going to be a different time limit on alimony.

Different Types of Alimony

In addition to general term alimony, the alimony reform law provides for other categories of alimony as well such as rehabilitative, transitional, and reimbursement alimony.  For rehabilitative alimony, the limit is five years, for transitional alimony, the limit is three years, and for reimbursement alimony, there will be a set date or event that will terminate alimony.

It is important to know which type of alimony applies in your case, and to learn about their differences.  Occasionally, alimony can be extended beyond the durational limits, but this is highly dependent upon the particular circumstances of your case.  Alimony is also based not just upon the length of the marriage, but upon need and ability to pay.   The new alimony reform act is a complicated law with many nuances, and consultation with a lawyer can help a client better understand how the new law applies to his or her case regardless of whether the client is the payor or recipient of alimony.

Divorce A-Morphosis

Transition or metamorphosis is the passage from one state, subject, or place to the next. Going through a divorce is a life transition for everyone involved. Clients are moving from a state of conflict where they were questioning many things in their lives to a state of transition which will lead, hopefully, to a life with less conflict, more stability, and greater happiness.

The transition process often starts before a party has even decided on divorce. Clients often report when they seek the advice of a divorce attorney, that there was a shift in their relationship with their spouse sometime years earlier, which they may not have fully understood then, but which had a profound effect on the family. Life’s passages may not always lead directly to divorce; many clients seek counseling for themselves or together with their spouse to try to understand what is happening, why they feel a “sea change” in their relationship, and how to improve and maintain that relationship. Some parties may stay together, but others begin to say the word “Divorce.”

We have seen in our office, all types of people going through divorce, or experiencing other family law problems, in “metamorphosis”. Clients experiencing conflict, sadness and anxiety may have many complex – and at times confusing – feelings about how they are going to transition through divorce. Ralph Waldo Emerson once said, “Every wall is a door.” Divorce clients don’t always know what is on the other side of the wall, but they know they have to find the door to the other side, and as part of their divorce walk through that door to their new life.

Piercing through that barrier is no easy task; the process of divorce can take up to a year for some couples. It forces participants to think about these transitions and do some serious soul-searching. Hopefully, as things begin to fall into place, the parties will transition from those feelings of sadness, conflict and anxiety to feeling more empowered to make positive changes in their lives, and those of their family.

Once the dust settles and the papers are signed, a newly divorced couple must then face the task of making their post-divorce lives work. This can be challenging, especially if they have children. A good family law attorney will have a professional network of experienced professionals to recommend to clients, from life coaches to psychologists to advisors or other professionals, contacts that may be useful not just during the divorce process, but also post-divorce.

I have personally witnessed the effects of half-realized or poorly planned transitions in divorces, and when those happen parties are more likely to continue to have conflict post-divorce or end up in court – which runs contrary to most people’s goal of finding more lasting resolutions and staying out of court. There are many resources for clients to help them with the transitions that come with divorce and clients should not hesitate to ask their attorney for help in achieving legal solutions that will stand the test of time.

The “New” Massachusetts Alimony Reform Act of 2011 – what do you need to know?

Massachusetts recently introduced sweeping reforms to the law governing spousal support with the Alimony Reform Act.

While Massachusetts previously had alimony laws, before the new Act took effect different judges applied the law differently from case to case, making the process an uncertain one for the parties and their lawyers. The new law is an attempt to provide more consistency so that parties can be better informed about their options as well as potential outcomes when they go to Court.

The Massachusetts Alimony Reform act establishes four different types of alimony:

  1. General Term Alimony – this is the most common and basic type of alimony as it is simply the periodic payment of support to an economically dependent spouse.
  2. Rehabilitative Alimony – This is alimony paid to a spouse who needs support until they “rehabilitate” themselves to become economically independent.  For example while the spouse completes school or a training program so they can get a job.
  3. Reimbursement Alimony – This type of alimony is to help “pay back” the spouse who supported the other during the marriage to allow that spouse to become successful; for example a spouse who supported the other during medical school.  The now well-paid doctor can make a lump sum or periodic payment of alimony to the spouse who helped them get through school.  This type of alimony can only be used however, if the marriage was five years or less.
  4. Transitional Alimony – This alimony is similar to rehabilitative alimony, but it is used to help the recipient spouse adjust to a different lifestyle or location which is caused by the divorce.  For example, if a couple relocated from Chicago to Massachusetts for a job opportunity, but after the divorce the other spouse wants to return to Chicago, transitional alimony could allow them to relocate, establish a home, and transition them as they readjust to their new lifestyle.  This type of alimony also can only be used when a marriage lasts less than five years.

Each type of alimony has its own exacting set of criteria and corresponding responsibilities.The new law is meant to clarify what form the alimony should take in a given case, but there are still uncertainties as the courts interpret the new law and apply it to different cases.  For now, in applying the alimony law to a particular case, we have to rely on the wording of the new law, and our day to day experience with our cases and in the courts.  If you are concerned about alimony, either because you have an existing alimony order, you may be paying alimony, or you may be seeking alimony, be sure to consult an attorney about the new Massachusetts Alimony Reform Act and how it may apply to you and your case. For more information about the new law, go to The Massachusetts General Laws on Divorce.

In future blogs I will be addressing some specific parts of the new alimony statute, including how long alimony should be paid, the relationship between alimony and child support, and what effect retirement or cohabitation can have on alimony.  Stay tuned!

When a Party is Out of Order, a Complaint for Contempt May Be in Order

A party may file a Complaint for Contempt when they believe another party is not complying with an existing Court Order or Judgment.

Contempts are not uncommon in family law, and are frequently seen when a party is failing to pay court-ordered child support or alimony, or there is some other non-compliance related to a parenting plan or asset division; however, any non-compliance with a Court Order or Judgment can be the basis of a Contempt.

Civil Contempt

There are two types of contempt: Civil Contempt and Criminal Contempt.  In family law we traditionally see Civil Contempts, as the goal is not so much punishment, but for the other party to comply with the Court Order; for example, by getting the other party to pay their child support as ordered. With a Civil Contempt the Court can still order attorney’s fees or other sanctions as part of any contempt judgment.

A Complaint for Contempt is a separate action from a Divorce action or Paternity action; however, often the actions may run concurrently. For example, if a divorce is pending and there are temporary orders for child support, if the responsible party isn’t paying, the aggrieved party could file a Complaint for Contempt to seek compliance with Court Orders.   Other times, parties may already be divorced, and a party may need to file a Complaint for Contempt due to the other party failing to comply with the terms of the divorce agreement.

Proof of Contempt

For the Court to find a party in Civil Contempt, the standard of proof is high. The Court requires a “clear and unequivocal command and an equally clear and undoubted disobedience.” Larson v. Larson, 28 Mass.App.Ct. 338, 340, 551 N.E.2d 43, 44 (1990).  If a Court Order is not clear, even though both parties may know the intent, the Court will not be able to find a party in Contempt. It is vital when a party is entering into an agreement that they wish to become a Court Order, such as a Divorce Agreement, that the language is clear, both so that parties know exactly what they are agreeing to, and also so that the Court can enforce the Order should a Contempt be necessary.

Sanctions for Contempt

The Court has broad powers to enter orders in a Contempt action in order to gain compliance with Court Orders. With respect to the common example of a party failing to pay child support, the Court may find a party in Contempt and order them to jail for a period of time, or until they pay a portion of the monies owed in order to “purge” themselves of the Contempt.  Sometimes the threat of incarceration is enough incentive for a person to comply with a court order.

The Court also has the power to award attorney’s fees or other sanctions such as reimbursement for lost time from work. Even if the Court does not feel that the standard for Contempt has been satisfied, the Court may enter other orders to address whatever underlying issue has resulted in the filing of Contempt complaint.

Defenses for Contempt

Parties should also be aware that there are defenses to a Contempt action. For a party facing a Contempt action for failure to pay alimony or child support, the party may be able to defend successfully against the Contempt if they show they have an inability to pay, for example if they were laid off from their employment, or they may be able to prove that they did comply with the court orders or have a legitimate reason for non-compliance.

Reaching a Settlement

The process of going through a Contempt action can be bittersweet. Even if the end result is monetary or other relief for a party that desperately needs it, that same party may be back in court again, sometimes for the same reason. It is important to work hard to reach agreements or settlements that both parties can live with…and live up to.