Boston Divorce Lawyer Blog

You’ve gotten a divorce and both you and your ex-spouse walked away with a division of property.  Now, for whatever reason, you want to modify that agreement to get more of the marital assets.  Can you do it?  It depends.

For the most part, the answer is no.  A property division is final and cannot be modified except if there was mistake, inadvertence, excusable neglect, newly discovered evidence or fraud.  This is all pursuant to Massachusetts Domestic Relations Procedure Rule 60.  In order to win a modification on a Rule 60 motion, you need to show that there was one of those things listed in the rule.  Most of the time it will be newly discovered evidence such as that the stock options were actually worth more than what was listed originally or fraud.  Fraud would be that you discover and can prove that your spouse hid money or he lied about his financials.

Rule 60 motions are very hard to win and so for the most part, a Complaint for Modification will not work on a property division in Massachusetts.

The Separation Agreement in a divorce is arguably the most important document since it governs the conduct and responsibilities of the parties after their divorce.  It is a contract and is enforceable by the courts.

Here are 10 traps to avoid (or 10 things to look out for) in a Separation Agreement:

1. Make sure you understand the “Incorporation and Merger” clause of the Separation Agreement.  If the Separation Agreement does not merge into the judgment of divorce, then it survives as in independent contract which makes it harder to modify.  You can merge some provisions and not others in a Separation Agreement.  Your attorney can advise you on which portions to merge and which portions to let survive.
2. Make sure you include an “Emancipation” clause in your Agreement if there are children involved.  You want to specifically lay out when child support ends and under what circumstances so there is no ambiguity and disagreements  between the parties.
3. Make sure to lay out how visitation works on special holidays such as Christmas, Thanksgiving, Mother’s and Father’s Day, child’s birthday, etc.  Most Separation Agreements will have a normal visitation schedule but neglect to mention how, if any, the visitation schedule will differ on special events.
4. Make sure you know the difference between physical and legal custody.  Custody has two parts, physical and legal.
5. Make sure you spell out what expenses of the children fall outside of the normal child support payments, such as, extracurricular activities, camp, medical expenses, etc.
6. Consider if one parent is more well off than another, requiring the wealthy parent to maintain life insurance where the beneficiary is either yourself or held in trust for the children.  Also require proof that the policy is maintained every year.
7. If any retirement accounts are divided during the divorce, it must be through the use of a Qualified Domestic Relations Order (QDRO) or else there will be interest and penalty charges levied by the IRS and Department of Revenue.
8. If you need health insurance coverage by your spouse, make sure to spell out who is responsible for that coverage, what type of coverage and how long the coverage will last.
9. Make sure to spell out who gets the benefit of claiming the child(ren) as dependents on taxes
10. Last but not least, make sure to have an experienced divorce lawyer, if not draft, at least look over the Separation Agreement before you sign it.  Some parts of a Separation Agreement might be impossible to change once it is approved so you don’t want to count on an action for Modification if you notice later on, that a particular provision was not to your liking or advantage.

Of course there are more than 10 things you need to consider before signing a Separation Agreement.  Make sure you know what your rights are being signing any legal document.  You want to do it right the first time because it will cost less time, money and heartache in the future.

For a free consultation with a Boston Divorce Attorney call (617) 273-5110 and ask for Gabriel Cheong.

Below is the list of forms needed in order to file an uncontested (Joint Petition for) divorce in and around Boston and Massachusetts.

• Joint Petition for Divorce
• Affidavit of Irretrievable Breakdown
• R408
• Financial Statement of both parties
• Separation Agreement *
• Request for Trial
• If there are children involved, then you will also need:
  • Child Support Guidelines
  • Affidavit of Care & Custody
  • Parental Education Certificate

* The Separation Agreement is the most important part of the filing packet because it is a contract that governs the divorce.  Forms are easy to fill out and an attorney’s role is not simply to fill out forms.  The purpose of a divorce attorney in an uncontested divorce case is to counsel his client on all the different issues that might come up in a divorce and after and to make sure they are all addressed in the Separation Agreement.  A Separation Agreement, just like any other contract, should be drafted and reviewed by an attorney who is familiar with the subject.

For a free consultation with a Boston Divorce Lawyer call (617) 273-5110 and ask for Gabriel Cheong.

In an uncontested divorce (Joint Petition for Divorce or 1A), after the judge grants a divorce at the final hearing, the court will issue a Findings and Order along with a Judgment of Divorce Nisi after 30 days.  The Judgment of Divorce Nisi is the judgment from the court granting your divorce.  The Judgment however is not valid until 90 days after.  Altogether, after the final hearing, you have to wait 120 days until your divorce becomes finalized.  When the 120 days are up, you can pay $20 to the court and you can get a Certificate of Divorce.

In a contested divorce (Complaint for Divorce or 1B), after the judge hears all the evidence and testimony at trial, the court will issue a Findings and Order along with a Judgment a few months later.  90 days after the Judgment of Divorce, your divorce will be finalized and you can obtain a Certificate of Divorce.

The issue I want to discuss is joint physical custody (as oppose to legal custody).  In my opinion, joint physical custody is detrimental to the children and should not be pursued in most cases.

In a typical custody fight during a separation or divorce, both parents will want sole physical custody.  Sometimes, they will compromise and settle for joint physical custody where the child will spend 3 days with one parent, then move and spend 4 days with another parent.  Can you imagine how difficult this is for a child?  As an adult, I would find it difficult to have to uproot myself and move every 3 or 4 days, not being able to have one permanent place I call home.  If I, as an adult, find it difficult, imagine how it affects children.

Children needs stability.  Divorce and separation is already difficult enough on a child due to massive changes in routine in a child’s life.  As parents going though separation or divorce, you need to at least be able to provide stability in as many areas of the child’s life as possible.