Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

As a divorce attorney, I would be lying if I said I didn’t notice the effect the Great Recession has had on my practice.  Like almost every business in any industry, I’ve noticed that fewer new clients are walking through the door.  But I wasn’t aware of the startling effect the Great Recession has had on divorce rates generally.  A recent piece by NPR’s All Things Considered informed me that  studies have shown that for every one percent increase in the unemployment rate, there is a one percent corresponding drop in the divorce rate.

This correlation isn’t due to families “doubling down” and growing closer in the face of adversity, but because couples who would otherwise part ways cannot afford to do so.  They cannot afford Court and attorney’s fees, nor do they have the cash on hand to properly divide their estate.  The end result is that people who have terminated their relationship are forced to remain married to one another, often under the same roof.  For some couples, however, this is an unbearable condition.    Throughout history, divorce rates and rates of domestic violence including homicide have shared a correlation: when divorce rates go up, domestic violence rates go down.  The end result of combining all of this information is a frightening picture: when the stressors that make divorce most likely are affecting millions of people, the same root cause places divorce out of reach.  These same stressors make domestic violence more likely, and the inability to obtain a divorce or remove oneself from the marital home make domestic violence more difficult to escape.

So what information can I provide those in such a situation?

•  You may qualify as an “indigent”, or a person who simply does not have the means to afford the fees associated with divorce.  If you do, filing fees and other court costs may be waived.  You may also be eligible for free legal advice or representation.

• Divorcing may require you to “liquidate” your assets, or to transfer property from one spouse to the other.  You should note that the IRS allows divorcing couples to transfer property between one another without incurring any taxes for such transfers.

• Lastly, you should note that if you and/or your children are being subjected to abuse by your spouse, there are both legal protections and other resources available to you.

There are certainly times when divorce is simply out of the question, but if you or someone you know is placing their physical, emotional, or mental health at risk due to the Great Recession, waiting for the economy to turn around should not be an option.

I am surprised at how often I hear both clients and attorneys tell me that in Massachusetts, when couples divorce, everything is split 50/50.  That is simply not true in Massachusetts.  Splitting everything 50/50 is more akin to community property states such as California.  Let’s break down that sentence and examine it:

Everything is split 50/50

The bolded text “everything” is correct and accurate.  In Massachusetts, when a couple divorces, everything is up for grabs.  Everything includes income and assets acquired during the marriage and also before the marriage.  Everything also includes gifts and inheritances during and before the marriage.

Everything is split 50/50

The bolded text “is split” is somewhat correct.  Since everything is up for grabs, everything is then up to be split.  It doesn’t mean that it will be split but simply that there is a possibility of it being split, depending on the circumstances of each couple.

Everything is split 50/50

The bolded text “50/50″ is absolutely false.  Massachusetts is an equitable division state.  It means that at the time of divorce, judges look to see how to split property equitably.  Equitable is a fancy term for “fair and reasonable.”  Fair and reasonable does not mean 50/50 or else our laws would simply say 50/50 or equally.  Equally is not the same as equitably.

Let’s take for example the case where a young couple in their 20′s gets married.  They started the marriage with next to nothing and they’re married for 9 years and had no children.  They then decide to divorce.  In that situation, it would be fair and reasonable to split their assets 50/50.

Now let’s take another example where a young couple in their 20′s gets married.  They started the marriage also with next to nothing and they’re married for 20 years and had 3 kids and the wife was a stay-at-home mom for 15 of those years.  In that situation, it would NOT be fair and reasonable to split their assets 50/50 because the wife sacraficed her professional advancement outside of the home to raise the couple’s kids which in turn enabled the husband to advance his career.  Now if she was to go back to the work force, she would be 15 years behind the curve professionally.  In this situation, a fair and reasonably (or equitable) distribution would be to give the wife more of the assets.

Many of my clients are worried about two issues when it comes to transferring property pursuant to a divorce.  They’re worried either about their house (real property) or their retirement accounts.

Transfer of Real Property

During the marriage, spouses can transfer unlimited money and assets between themselves – tax free.  There is no transfer or capital gains tax on transfers between spouses.  After divorce, spouses (or ex-spouses I suppose) have up to 1-year from the divorce date to transfer property between them, tax free – even if the transfer was not mentioned as part of the divorce.

Transfer of Retirement Assets

If you take out money from any of your retirement accounts (401k, IRA, Roth IRA, 403b, pensions, etc.), you will incur a penalty and be taxed on the amount.  So when couples need to split their retirement accounts during or incident to a divorce, many people worry that they will get penalized and taxed.  However, if done property, that won’t be the case.  Any amount that is taken out or divided incident to a divorce, should be done through a Qualified Domestic Relations Order (QDRO).  It is a special document that is submitted to the retirement account administrators instructing them to divide the account without triggering any penalties or adverse tax consequences.

Before transferring real estate or retirement assets in a divorce, it’s best to consult with a knowledgeable Massachusetts divorce attorney so that you won’t make the mistake of having to pay Uncle Sam when you don’t need to.

In a new book, Survived by Love, Jay Kent-Ferraro, a psychologist by training, talks about his marriage, how he cheated, got divorced and fell back in love with his wife.

I’m very much encouraged by these types of stories.  In my practice, I see couples come to me when their lives are falling apart.  I see my role as helping them rebuild from the rubbles of their failed marriage to build a new life.  Many people demonize divorce attorneys.  They think we create divorce and promote it.  In reality, couples come to us only after they’ve decided to divorce.  We did not cause the divorce itself.  Still, the stereotype persists.  Every once in a while though, I get calls from people who are really ready to divorce.  I’ll speak with them and they’ll reconsider.  Maybe they haven’t tried marriage counseling.  I’ll tell them to go try it.  Maybe they  haven’t taken a real deep look at themselves and their spouse to understand the problems and difficulties and try to fix them.  I ask them to be introspective.

When potential clients don’t call me back after I’ve had the talk with them, I like to think that maybe they decided that their marriage was worth the work.  It was worth a second chance.  I’ve also had clients who remarried their ex-spouse and I’ve had clients who stayed with their ex-spouse, though never got remarried to them.  It’s very encouraging.

Marriage isn’t forever.  Neither, apparently, is divorce.

Divorce, custody, support and probate cases in Massachusetts will go even slower than the past few years not only because of budget cuts, but due to an unprecedented number of judges retiring in 2011.  In total, 10 judges will be leaving the bench in 2011.  That amounts to about 20% of the judiciary.

In the past few years, cases in probate court has been administered slower, court dates has been assigned later, and motion hearings has been pushed back more and more due to budget cuts.  The court is severely understaffed by court personnel and clerks that take in the cases, dockets them, and puts them in front of judges to hear.  Judges have had to work overtime in order to push out cases in a fair manner up until this point.  However, with 20% of the judges leaving, we will start to see a significant slow-down in court procedures.

Uncontested cases, before 2007, used to take about 5 months from start to finish.  Now, they take about 7 months or longer from start to finish due to the court not being able to give final hearing dates as quickly.  Contested cases, though it depends on the complexity of the matter, will now mostly like take a lot longer than 9-months.