How is alimony calculated and how is property divided in a divorce?

First, in an uncontested divorce, those issues are decided by the husband and wife. They work it out between themselves. In the case of a contested divorce where the husband and wife cannot agree, then they must leave it up to a judge to decide.

Probate and family court judges must rely on a number of factors to guide them in their decision as to which spouse should get what. These are more commonly called Section 34 factors. They are:

1. Length of the marriage
2. Conduct of the parties during the marriage
3. Parties’ age
4. Parties’ health
5. Parties’ station in life
6. Parties’ occupation
7. the parties’ source and amount of income
8. Parties’ vocational skills
9. the parties’ employability
10. the parties’ estate
11. the liability of each party
12. the parties’ individual needs
13. the chance of future acquisition of the parties
14. the parties’ respective contribution, preservation and appreciation to the marital assets
15. whether one of the parties was a homemaker

The judge would also look at the needs of the children when making a property division but the judge cannot look to the needs of the children when making an alimony determination – that is a child support issue and covered by another statute.

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The fastest an uncontested divorce can be accomplished is 121 days IF everything worked perfectly.  However, on average, an uncontested divorce will take about 5-6 months to finalize.

Some attorneys will tell you that expedited divorces can be done through “walk-ins” in the divorce court.  Although that might be true for some courts, it is not true for all courts.  Due to budget cuts, many courts in Massachusetts cannot accommodate walk-in divorces.  In addition, even if you managed to walk-in a divorce on that same day and see a judge to approve the divorce, by law, you must wait 120 days after seeing a judge for the divorce to be final.

Some attorneys will also promise expedited service but either not tell you about the 120 day or put it in fine print that their expedited service is subject to statutory law and judicial scheduling.  What that means is that they cannot make it go faster than 120 days.

Therefore by law, a divorce can never be faster than 121 days or 4 months.

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“There is nothing to stop your spouse from raiding those investments and taking it all. And then with all the money gone, you’re left with all the legal bills,” said [John A. Logan, chief executive officer of SafeGuard Guaranty]

This sounds to me like the product of an angry divorcee but one who is not typical.  Not every divorcee leaves a marriage in ruins and financially unable to care for themselves.  Insurance like this makes no sense because presumably if your spouse had a good attorney, they would be able to raid the insurance fund as well.

My advice would be to save your money for something worthwhile – like a marriage counselor.

Divorce Insurance (Yes, Divorce Insurance) (via NY Times Blog)

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NPR’s StoryCorp interviewed a pair of sisters who used to live in one of Reno’s many “Divorce Ranch”.  Back in the 50s and 60s, divorces for women were hard to come by in all but Reno because of Reno’s 6-week residency period for divorce.  So women would come from all over and live for 6-weeks and then get a divorce.

One of the sisters in the story said,

“Listening to stories from the guests, I think we probably thought many times, ‘I sure won’t make that mistake!’”

As divorce attorneys, we are in the same place as these ladies who witnessed divorce, day in and day out.  And we also say to ourselves, “I sure won’t make that mistake!”  However ironically, the rates of divorce in divorce attorneys (and also marriage counselors) are higher than that of the regular population.  That tells us that either we don’t really learn from other people’s mistakes or divorce is contagious, or both.  I try to keep in mind that a correlation between divorce and divorce attorneys doesn’t imply causation.

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The reason that it should be said more is because often during litigation while the couple is fighting, they lose the connection between why they’re fighting and the cost-benefit of pursuing the fight.  For example, it makes no sense to fight over a piece of furniture that’s worth $500 by spending an additional $1000 in attorneys and court fees.  Both parties lose.  As counsel for our clients, we need to make sure they understand that sometimes it’s not worth it to fight and in most situations, it’s better to calmly negotiate a resolution.

A divorce lawyer who has divorce trials all the time and who fights over every little thing, quite frankly isn’t doing their job well.  The couple needs to learn how to work with each other and with the help of their divorce lawyers, forge a new way to communicate after divorce.  That is the job of a good divorce attorney.

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via UCB Comedy

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The military, if 2 people are not married, will not consider a joint reassignment. That makes it extremely difficult when the couple has a child together and they were either sharing parenting time or one parent had sole custody but the other had regular visitation rights.  In that case, when happens all the time,  the parents will have to go back to court to settle on a new custody arrangement.

These types of cases are generally call Removal cases because one parent is usually requesting that the child be removed from Massachusetts to live full time in another state.  If the parents cannot agree on a custody arrangement on their own, the court will make a determination for them.  They will look to see what is in the best interest of the child and also whether there is a real advantage in one parent moving while another parent stays.  Usually if there’s a job or military reassignment, there is definitely a real advantage to the parent for them to leave the Commonwealth.

How the court makes a decision is very complex.  Child custody lawyers for both parents will really need to convince a judge one way or the other if the parents don’t agree.  In a lot of cases, a guardian ad litem will be very useful to a judge in making his determination.

My advice for military families is that if you’re getting divorced and figuring out the parenting and custody situation, make advance plans for what happens when one parent gets deployed or reassigned.  You don’t want to deal with the issue at a later date because you will be spending twice the time, money, energy and heartache to litigate the issue and fight again.  Figure it out the first time around.

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The GAL will work the both parties’ divorce or child custody lawyer to get a list of witnesses to talk to.  In a child custody case, they will typically want to talk to the parties and see the child interact with the parents in the home.  They will want to speak to the child’s teachers, babysitters, family members, doctors, etc.  Anyone that the GAL feels will have an opinion as to how the child is raised and the interaction between the child and the parents.

After the investigation and speaking with all the witnesses, the GAL will typically write a report to the judge detailing his investigation and lastly, make a recommendation on how custody should be ordered.

A GAL is very useful in that they will do a more extensive investigation and will be able to bring in more testimony and witnesses than if the divorce or child custody attorneys can parade in during trial.  You probably don’t want the entire family, friends, neighbors, teachers and doctors to be testifying at trial during your divorce or child custody battle.

If you’re in the Boston area and you feel you might benefit from using a GAL in your case, you should speak with your attorney.  Using a GAL can be a useful litigation strategy.

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Myth: If I’m completely uncooperative, I can stop the case from moving forward.

Truth: All too often, people believe that if they refuse to participate in the process (divorce, child custody, child support, alimony, paternity, etc.), the process can’t move forward.  The truth is that while this might stall the proceedings temporarily, it won’t work for long.  Not only will the process move forward, but it will more than likely end with a final result that you absolutely hate.  Why?  The courts can only make decisions based on what is presented to them, and the other party has no responsibility to tell them your side of the story.

Your failure to respond to filings and refusal to show up for court dates hurts only you.  Only you (and your attorney) can defend your interests.  The thought of going to court makes everyone anxious.  It’s not a pleasant way to spend your day.  But what’s at stake is too important to let anxiety get in the way.  If you ignore the process, the process will go forward, ignoring you.

Myth: A good lawyer can be found cheaply or for free.

Truth: You wouldn’t walk into the super market and ask for free food.  A brand new car with an incredibly low price tag would probably make you suspicious.  So why would you expect a good family law attorney to be cheap or free?  Like all other things, when it comes to legal services, you get what you pay for.   Why would you want to pinch pennies with what is at stake in a family law matter?

If you truly cannot afford a family law attorney, it may be worthwhile to look into pro bono (free) legal services that may be available to you.  There are a few things worth remembering when looking for these services:

-           Just calling private attorneys offices and asking for free or discounted rates likely isn’t going to get you free or discounted services.  It’s not that attorneys don’t want to help you, it’s that they can’t afford to!

-          Family law matters are matters of civil law.  This means you don’t have the right to an attorney.  That only applies to criminal matters.

-          Legal services agencies (agencies that receive funds from the Commonwealth to provide free legal services) can only provide services to individuals who, at the very least, meet income requirements.  In lawyer terms, you must be “indigent.”  This typically means your household’s income is equal to or less than 175% of the Federal Poverty Line.  Right now, that’s approximately $13,500/year +$4,500/year for each additional family member living in the household.

**Even if you meet this requirement, different agencies have different “priorities” for service.  These priorities are set by the Commonwealth when the agency is created.  While the agency might have discretion to accept other cases, they also have practical limits like their funding and their caseload.  Often these agencies can’t accept all cases that fall within their priorities, let alone accept ones that fall outside of them.

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