Divorce and Family Law
Divorce and family law matters can occur along with a divorce for families with minor children or they can occur separately. In either instance, these legal matters may cause extensive emotional anguish and stress. Long, Knight, Huff-Harris & Hagan, P.C. is experienced in divorce and family law and can represent your interests efficiently and diligently to increase your divorce award, ensure that your children receive the child support they need and help you safeguard your parental rights in the child custody process.
We always advise our clients that the best planning is proactive planning. Prenuptial (also known as pre-marital agreements) and/or postnuptial agreements are extremely smart to have in place prior to a marriage or immediately following a marriage. These agreements help curb many future disputes that may arise during a divorce. A prenuptial agreement is an agreement between two people executed prior to marriage that specifies how certain property, debt and assets should be divided in the event of a divorce, death or separation. A postnuptial agreement is similar to a prenuptial agreement, but it is different in the fact that the agreement is executed after marriage. A couple may execute both of these agreements as postnuptial agreements can waive certain benefits that a prenuptial agreement cannot. That is because the statutory provisions of Gen Laws Chapter 209 state that a married woman may contract with her husband and therefore can give away more benefits after marriage. This works the same for men.
Three elements must be presented for a pre-marital or post-marital agreement to be valid and legally binding. The first element is the exchange of valid and complete financial information between the parties (full disclosure). Second, each party should have their own attorney in the transaction representing their rights or waive such representation in a certain writing signed the unrepresented party. Waiving such right to representation is not advised. Third, the agreement must be signed by the free will of each party. In other words, enough time must pass for the transaction to be well contemplated and contain no evidence of duress or stress. If any of these elements are missing, the agreement may not be legally enforceable, and you may subject yourself to divorce litigation.
The major benefit to executing these agreements is the fact that you will be able to negotiate what you want your spouse to receive upon a separation or divorce when your minds are clear rather then when you are under emotional and/or other stress. Prenuptial and/or postnuptial agreements can also be useful for second and third marriages to ensure assets aren’t taken away away from children from prior marriage(s).
In Massachusetts, divorce can happen uncontested and contested. Uncontested divorce occurs when two married people decide to obtain a legal divorce and agree as to all of the terms and stipulations during the divorce and division of assets (including child custody). Contested divorces happen when there is a dispute as to the terms of the divorce and/or the division of assets. Contested divorces often lead to divorce litigation and can be tied up in the court system for a long period of time.
A divorce can be pursued in two manners: under no-fault grounds or fault grounds. A “no fault” divorce is any divorce where one spouse does not have to prove that the other spouse did anything wrong. To have a divorce “for fault”, one spouse has to do something wrong that is against state law. One such ground for fault is infidelity. Other grounds for fault are abuse, neglect, alcohol and/or substance abuse and desertion. Further, Massachusetts has jurisdiction over a divorce proceeding if one of the spouses has lived in Massachusetts for the preceding year prior to the filing of the divorce complaint. This may be waived in the event the injury or cause for the divorce occurs in another state.
As far as the distribution of assets, Massachusetts is an equitable division state. In other words, property that is acquired during marriage belongs to the spouse who has earned or acquired it. At divorce, the assets are divided equitably and fairly pursuant to a judge’s court order. The factors that the court uses to equitably divide assets are as follows: length of marriage, conduct of the parties during the marriage, age, health, occupation, income streams, vocational skills, child support contributions, employability and liabilities. The court may also order either party to pay the other alimony based on the same factors.
Long, Knight, Huff-Harris & Hagan, P.C. can represent your interests in a child custody proceeding after a divorce or if you and your co-parent fail to see eye-to-eye at any period of time. Judges of the probate & family court make most of the custody and visitation decisions. Our attorneys can also assist you in a court hearing regarding child custody or co-parenting arrangements and/or modifications. In making their determination, the court determines what is in the best interests of the child.
Our attorneys can help you pursue paternity proceedings if you feel that you have been wrongly withheld from your child or your child’s father is denying that they have parental duties. In a paternity proceeding, a judge can order tests called “genetic marker tests” to determine who the father is. There are two types of genetic marker tests: a cotton swab and a blood test. A judge can order the biological mother, suspected father and the child to have such paternity tests completed. As far as payment, usually the person who requests the test pays for the test; however, the court may order the parents to split the costs. If paternity is established, the court may rule on one or more other decisions including: child support, health insurance, custody, visitation schedules and/or a restraining order if the child is in imminent threat of injury by either parent.
Child custody revolves around the living and care arrangements of a minor child. The following are the four custody arrangements that are available in Massachusetts:
- Sole Legal Custody: One parent has all of the rights and responsibilities in making major decisions regarding the child’s welfare, education, medical care, emotional care, morals and religious development.
- Shared Legal Custody: Both parents have shared rights and responsibilities in making major decisions regarding the child’s welfare, education, medical care, emotional care, morals and religious development.
- Sole Physical Custody: One parent has supervision rights over a child. The child also resides with only one parent. The other parent receives reasonable visitation rights, unless the court decides that such visitation would not be in the child’s best interests.
- Shared Physical Custody: Both parents have supervision rights over a child and the child resides with both parents for certain periods of time.
More commonly, one parent is awarded sole physical custody of a child. In that case, the child lives with the custodial parent and the custodial parent remains in charge of making day-to-day decisions concerning the child. Sometimes, courts will award joint custody where the child will live for certain periods of time with one parent, and other periods of time with another. However, due to the ability of travel in todays day and age, this is not always in the best interests of the child.
Visitation schedules are made in circumstances where a child does not live with both parents. These schedules are drafted based on the best interests of the child and could change as the child grows and matures. Court approved visitation schedules may be avoided where two parents can agree as to a visitation schedule. Otherwise, the court must be utilized to implement, enforce, alter and/or modify visitation rights. In some cases, the court may mandate supervised visitation. This is not always the case and usually occurs where the parent is determined to be a threat to a child’s well being.
Although both parents have a duty to support a child in Massachusetts, only the non-custodial parent makes child support payments to the custodial parent for the care of the child. Child support refers to the monetary amount that the non-custodial parent must pay for the child’s basic living expenses. Basic living expenses include: food, clothing, shelter, health care and education. In 2013, the Massachusetts child support guidelines changed significantly. Namely, Massachusetts changed the factors they use for calculating the amount of child support one parent must pay to the other for the care of their child. Such factors are delineated in a child support worksheet, which is used to make the calculation. The child support worksheet requires the net available weekly income of both parents in order to determine the child support payment. Net available income is gross income of each parent minus the expenses paid out for childcare costs, medical-related costs and any support paid to a former spouse and/or child not covered by the current request. To this amount, parents must also cover the child’s health insurance and educational costs. If it is in the best interests of the child and affordable by the parents, payments for extra curricular activities such as a private school, dance lessons, music classes, after school sports, etc., may also be ordered by the court.
- See: a copy of the revised 2013 child support guidelines on the Mass.gov website here: http://www.mass.gov/dor/docs/cse/guidelines/2013-child-support-guidelines.pdf.
Modification of Family Law Court Orders
Long, Knight, Huff-Harris & Hagan, P.C. can represent you in seeking a modification of a custody arrangement, visitation schedule and/or child support order. If you are in a situation where you are unhappy with the outcome of a family law proceeding or there has been a significant change in your life, our attorneys can represent your rights before the court and seek the modification you desire. Contact our law firm today to obtain a complimentary consultation regarding your rights in regard to your family law matter.
Civil Contempt in Family Law
Contempt of court is very common in family law cases. The family judge usually makes a certain order that one or more parents must follow. Civil contempt arises out of a person not following the terms of a court order or judgment. This can include adhering to: custody arrangements, child support, alimony, property division and paying expenses (such as home mortgages).
A plaintiff must prove three elements to substantiate a civil contempt complaint:
- There is a valid prior judgment or order;
- The defendant has knowledge of the judgment or order; and
- The defendant willfully disobeyed the judgment or order.
If a person is found guilty of civil contempt, the court may take advantage of one of many civil remedies. Very often will there be a criminal penalty, but this may still happen from time to time. Penalties for civil contempt include: reformation or termination of the subject agreement or order, payment of fines, jail time (less likely), order for garnishment of wages and payment attorneys fees to the plaintiff. Being represented by an attorney during this hearing can certainly sway the judge to render less serious penalties. The attorneys of Long, Knight, Huff-Harris & Hagan, P.C. are ready and willing to represent your rights during your civil contempt proceeding.
Long, Knight, Huff-Harris & Hagan, P.C. can help you navigate the maze of the Massachusetts adoption process. Adoption can be an emotional, yet very stressful time in a family’s life. Legal adoption of a child involves the filing of a petition to the court and observing certain rules of law to ensure that the child’s natural parents have fully waived their rights as to custody (also known as written consent). If the child is fourteen years of age or older, such consent may not be necessary. Our lawyers understand the adoption process and can guide you through it. We can assist in drafting the petition, obtaining all of the necessary written consent forms, prepare supporting documents and ultimately lead you carefully through the adoption process.
“DCF” stands for the Department for Children and Family. This department oversees that children are properly treated in general and that their homes are free of abuse and neglect. This department also arranges for the adoption of children. While the organization should be commended in the efforts they make in protecting the children of Massachusetts, they must follow certain guidelines to ensure civil liberties aren’t being jeopardized during their investigation process. While the guidelines are there, the urgency of protecting children sometimes gets in the way and civil liberties are taken away from unsuspecting parents. Long Knight can support you in a DCF proceeding if you are being threatened by DCF with losing custody of your child.
Anything you say to a DCF worker is not confidential. Therefore, the Department for Children and Family can take anything you say in an investigation and use it against you at court. DCF gets involved in two circumstances. First, if a person files a report due to suspicions of abuse and/or neglect. Second, if a family may voluntarily asks DCF for help.
Further, if the court obtains a 51A order against you, your child may be taken from you without notice. If this happens, you should immediately call your nearest DCF office and ask when a hearing is scheduled on the matter. You must never act in violence, as this can be placed on your permanent record and used against you in court.
During the hearing, the judge may decide that your child can come back to your home or they may decide that DCF must take custody over your child pending further investigation and counseling. Having an attorney by your side can ensure that you are presenting the best case in front of the judge, which will provide you with better chances of keeping custody over your child.
You can request access to the DCF reports, including any 51A orders. Remember, documents should always be reviewed in full prior to signing. Never sign any document you don’t understand. Always have an attorney review any documents that sign over custody of your child to any government agency or any other person. If you aren’t sure what you are signing, call Long Knight immediately.
Finally, you always have a right to appeal the DCF decision regarding whether your child is not safe in your home. You can also file an appeal if you believe that DCF deviated from its rules of conduct during the investigation. To appeal, a written statement (detailing factual details and evidence) must be prepared and sent to the DCF worker’s supervisor requesting a “fair hearing.” Every individual is entitled to keep their civil rights and liberties from being taken from them. If you believe DCF made such a violation against you, contact Long Knight today for a complimentary consultation on your rights.