Neil J. DePaul Attorney at Law

A legal oriented blog of news, general information, and guides for clients & residents in the Boston metropolitan area.

Neil J. DePaul Attorney at Law -

Modifying Child Custody Orders

Custody of childWhen a couple separates with children, child custody is always a part of the court proceedings.  The Judge will want to make sure custody issues are settled before closing the case so that there is some stability moving forward.  Child custody orders will last until the child(ren) turn eighteen (18) and can legally make their own decisions.  Sometimes it is necessary to seek a modification of the original order.  Knowing the legal standard is crucial to framing your case and position.

Before getting to the legal standard, a little review might be helpful.  Child custody has two parts, physical and legal.  Physical custody relates to where the child(ren) live on a day to day basis.  Legal custody relates to the major decisions of life which legally must be made for the child such as where to attend school, medical treatment, visiting the dentist for braces, etc.  Both parts can be shared or sole.  The first step in seeking modification is to consult the original  court orders – very often the document relating to child custody will be the separation agreement which was drafted during a divorce proceeding and then incorporated into the judgment of divorce.

Massachusetts has several legal standards in family law matters. Some of these standards come from case law and some from statutes, (Massachusetts General Laws, or MGL).  For child custody, the legal standard can be found in M.G.L., chapter 208, section 28.  This statute says that courts may modify earlier judgments which relate to care and custody of minor children of the parties when, “…the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.”

There are three significant elements to this standard which focuses on a change in circumstances since the earlier order of judgment was issues.  Those three elements are material, substantial, and necessary in the best interests of the children. Because of the way the standard is phrased, the Judge will also have to make two decisions.  Let’s look at the elements first.

First, there is a material change in circumstances. When you think of a material change, think important change. A material change can be relative or contextual to the parties – that is to say, it is material to you but not necessarily someone else. If you had to narrow down your reason for seeking modification to one issue, what would it be?

The second element is substantial which modifies material.  So not only does this change have to be important, it has to be very important.  A primary goal for children is stability, which is the reason that the standard for modification is so high.  For example, a change in employment or income or health of your former spouse may be material.  However, Massachusetts courts have ruled that these things are not – by themselves – material and substantial enough to change a child custody order.

Once a Judge has ruled that the change is materially substantial, the Judge must then determine whether the modification is necessary to the child’s best interests.  Judges have very broad discretion when deciding to grant a modification and when determining the credibility of the evidence and testimony.  A strong showing of why the modification is in the child’s best interests will help you tremendously.

As you prepare your case to modify a child custody order, make sure to cover each of the three elements.  But recognize there are two phases to the Judge’s decision process when applying the legal standard.  Something could be found to be a material and substantial change, but then not be in the best interests of the child.

By way of example, consider a case where the other parent has changed jobs taking a significant pay cut.  To be closer to their new job they have moved from a neighboring town near Boston to  Springfield, MA.  Let’s also consider that the original child custody order was for the parents to share legal and physical custody alternating weeks that the child lived with each parent.

Depending upon how you frame your argument and other factors that may be unique to your situation, the Judge could find that the move and significant cut in pay is a material and substantial change.  However, proposing that you eliminate the other parents shared custody and eliminate visitation is unlikely to be in the child’s best interest.

Knowing the correct legal standard is the best starting point.  From there, you plug in your facts with the strongest reasons possible to meet each element of the standard.  But remember to be reasonable in your proposed change.



Addressing the Myths of Divorce – Part II

- Children as Witnesses –

Children as WitnessesWhen it comes to visitation or child custody it can be so tempting to think “We’ll just ask the kids what they think.” Sometimes this idea comes to us in the heat of an argument or during a particularly contested hearing.  The bottom line is that calling children as witnesses is a bad idea and an even worse idea in a divorce or custody case.

Your goal must be to present the strongest case possible.  Presenting a strong case has two sides.  The first side is putting on your best case which will include offering solid evidence and calling credible witnesses.   The second side to presenting a strong case involves resisting your opponent’s attempts to undermine your position.

Children – even teenagers – are bad witnesses.  Shelves and shelves of books have been devoted to how pliable a child’s testimony is.  This defect in child testimony is especially pronounced when the witness has a vested interest in both sides of the case – their parents.  Ideally, you should not call a witness who is then going to require another witness – an expert in child psychology – to testify to your first witness’s credibility.  So calling your children is the opposite of a presenting a strong case from a witness standpoint.

Part of building a strong case is also resisting your opponent’s attempts to undermine you.  When you call your own children to testify, you undermine yourself.  Bringing in a child, particularly one under 16, calls into question your judgment about your child’s psychological welfare.  The worst part is that you – not your opponent – caused damage to your own case.  The Judge is probably going to be furious.  Remember these are Probate and Family Court Judges who spend a great deal of their time writing orders to protect children.  Seeing any child subjected to any harm makes their blood boil.

Better options

Remember your goal is to present the strongest case possible.  If visitation is an issue, sit down with your lawyer and discuss what evidence would make the strongest case.  Perhaps you are going for a modification of times – you might try using work schedules, or other documentary evidence.  If you are complaining of constant tardiness – you might ask a friend to be with you at drop off or pick up.  But a better choice might be insisting drop off be at a local police station – where tardiness can be quickly documented either in a report or by pulling the security cameras from the lobby.

Calling children as witnesses is never a good idea and should be avoided at all costs.  This is particularly true when the battling parties are the child’s parents.





Making Limited Assistance Representation Work For You

The Checklist

Clipboard with PenNot long ago, the only way to engage the assistance of a lawyer was to hire one full time for your entire case. Hiring a lawyer for the full case can be a significant financial hardship. Massachusetts now allows Limited Assistance Representation (LAR).  Under LAR, Massachusetts lawyers are permitted to offer assistance a la cart.  This is a tremendous benefit to the public and to lawyers.

Because the client, rather than the lawyer, remains responsible for the case in LAR, a checklist will help enormously. The checklist will help you correctly assign tasks to your LAR lawyer and keep track of your case.  Don’t be afraid to modify the checklist along the way when you discover new tasks or one gets “assigned to you” by the judge. Bbreaking down your case into manageable parts will make the whole process seem less overwhelming.  I’ve attached a sample checklist. NJD – Task to Apportion

Step One – General Thoughts

Before you try for details, get some general thoughts down.  For this post, I am going to assume your case is in the Probate and Family Court.  But the steps would be similar for any case.  General thoughts include:

Step Two – Getting to Know Your Case

This second step will require some research.  Since you know what the general case is about take some time to figure out how to handle the case. Meeting with an LAR attorney for an hour to get their thoughts on your legal matter will save you hours in the library and you may walk away with some checklists too.

If your case involved the Probate and Family Court, an excellent starting point is a book called Family Law Advocacy for Low and Moderate Income Litigants.  Type that into Google and you should be able to access the book in PDF form through several sites.  If there is any chance this will be an ongoing matter, or you anticipate other legal issues coming up over time I strongly encourage you to purchase the book.  MCLE (Massachusetts Continuing Legal Education) sells hard copies at the amazing bargain price of $35.00 through their web site. MCLE is also an excellent resource for other issues and you can buy individual chapters as you need them.

Take a look through the chapter that applies to you.  If there is a checklist start by using that sample.  Remember that your case is unique with specific time lines and deadlines.  Make note of some of the major issues to your type of case.  What are the deadlines?  What paperwork is required?

The next source you need is the Court Rules.  If you are in the Probate and Family Court, “the rules” is not just one source but comprised of several sources.  These are also available on-line with a Google search or through the Massachusetts Trial Court Law Library.  Make note of any deadlines.  For example the time allowed for responses, the timing for discovery (such as interrogatories, or demand for documents), or limitations on motions.

Step Three – Making the List

Start making a list.  Include each task which might need to be done.  Make sure to put a deadline (if there is one) next to each task.  If you are the one who has been sued, you are responding to the suit.  So your first task might be “answer complaint” with a date next to it. Having things broken down too much is far better than not having things broken down enough.

Step Four – Assign Each Task

Now that you have some tasks down on your checklist they can be assigned, to you or your LAR attorney.  By walking into an LAR attorney with a checklist, your first assignment for the LAR lawyer might be to review your checklist.  Is the checklist realistic?  Are there any tasks missing?

Your LAR attorney can also walk you through some of the tasks.  This will help you get a realistic idea of what is involved.  Case law research is probably one of your tasks.  Even though cases are generally no more than a few pages the time you need to accomplish this may surprise you.  Your LAR lawyer may be able to help point you in the right direction or conduct the research for you.

Step Five – Budget Your Time & Adjust Your Budget

Every new or unfamiliar task takes a lot longer than expected.  Handling your own legal matter with some LAR help along the way will be no different.  Having a checklist to consult with will help you know when you may need to adjust things.  Don’t skimp on any task – adjustment here means reassign a task.

For example, if you have decided to appear in court without your LAR attorney, it could be very important that you have read the most recent case law yourself.  This may help you understand what your opposition says and argue against them the day of the hearing or trial.  But reading case law takes time and you may need a pretrial memorandum or memorandum of law as well.  It may be necessary to assign that memorandum to your LAR lawyer.

By using the old fashioned checklist, Limited Assistance Representation will be a smoother process. Your checklist will help you budget your time and correctly assign the tasks which need to be accomplished.



Addressing the Myths of Divorce – Part I

Support and Visitation

DivorceThere are many common myths surrounding child support and visitation.  One of the most problematic myths incorrectly mingles to problems into one – “If my ex-spouse is not paying child support then I can stop visitation”  Another myth along these lines revolves around your kids wanting to participate in visitation.  You might have heard the second myth put something like “I shouldn’t make the kids go if they don’t want to go.”  Both of these myths can create significant problems.

No matter how peaceful your divorce may have been, there is bound to be some residual feelings that will creep upon you from time to time.  Being aware of these feelings and their tendency to creep back in can help you and your children enormously as you move forward after divorce. In the first myth – “If my ex is not paying child support I can stop visitation” two duties are being mixed.  Your ex-spouse’s duty to pay child support is one duty and this duty is exclusively their duty.  Your duty to adhere to the court approved visitation duty is the other duty.

If you spouse is not paying child support, your best legal option is to file a Complaint for Contempt in the Probate and Family Court. Other legal options may also include trying to negotiate with your spouse to pay the arrears and possibly adjust child support if necessary to encourage payment.  Courts have the power to garnish wages, garnish tax refunds, and even put a non-paying spouse in jail for non-payment.

Unfortunately, Courts cannot approve self-help measures such as using visitation as enticement to pay child support.  By refusing the let your ex-spouse have court ordered visitation you are actually exposing yourself to a Complaint for Contempt.  By keeping your end of the separation agreement – in terms of the visitation schedule – your case for non-payment is much easier to decide.  Probate and Family Court Judges have a lot of cases to keep track of.  So the simpler you make the issue – “my spouse is not paying…here is what they owe…here is when it was due” – the better.

The second myth really goes along with your duty to make sure the kids attend visitation.  Parenting comes with both duties (to care for your children) and rights (to see your children).  Kids have a life too and it is challenging for them to participate at times.  During the other parents visitation, there may be a favorite program on, they may want to visit with friends instead, or just stay home and “lounge.”  But you must make every effort to comply with the order giving your ex-spouse visitation.

The last thing you need is a Complaint for Contempt where your spouse accuses you of interfering with the Court Order.



Limited Assistance Representation in Massachusetts

- What is it and how does it differ? –

Limited Assistance Representation (LAR) is a concept that where a party Courtroom 2represents themselves (pro se) but contracts with an attorney to provide assistance along the way.  Prior to LAR anyone wanting to hire an attorney had to pay them to handle the whole case because the attorney was required to handle the whole case.  LAR gives parties who want to represent themselves or who are capable of handling some of the legal work themselves a way to reduce fees.

This is a substantial change from the past – where if you hired a lawyer, that lawyer was duty bound to handle the whole case until the case resolved or the lawyer was terminated by the client.  By approving the unbundling of legal services, the client can remain in control of their cases.  Just like traditional representation, the lawyer and client must enter into an engagement agreement.  An LAR agreement needs to be more detailed since it will outline who is responsible for what.  Checklists are one way to supplement the agreement so each side (the lawyer and the client) knows what needs to be done and who is going to handle the task.

Under the agreement, a lawyer could be hired to appear for only one motion – perhaps one that is complicated or requires some comfort in front of the judge.  A lawyer can also be paid for consultation – discussing the law and strategy, for example.  You can also contract with a lawyer to conduct legal research and provide their input on how a particular court works or the nuances of a particular judge.

It is very important to remember that under the LAR system, the party to the legal action remains in control – and remains responsible – of the prosecution of their case.  Under the traditional system, the lawyer was responsible from start to finish for following the Rules of the Court, adhering to the requirements for documents, and all the other technicalities of the legal process.  This is not true with LAR.  Under the LAR system, the party who hires the lawyer now takes on the responsibility to comply with the Rules of the Court and the other technicalities necessary for our legal system to run smoothly.

The reason LAR lowers costs is because the party handles a significant part of their case, hence the legal work is lower.  If you cannot handle significant portions of your case or if handling your own case becomes more than you thought, you should consider going to full representation with your lawyer. 

How does LAR compare with the traditional “full” representation?

 Full Representation means you hire the lawyer to handle the entire case.  The lawyer is responsible for making sure documents are collected, prepared, and filed correctly.  You will still need to help the lawyer understand your case, your goals, and provide much of the necessary documentation.  However, it is the lawyers’ job to work to achieve your goals through the legal process.

When you hire a lawyer to represent you fully, they are using their entire knowledge base, experience, legal research knowledge, etc., to help you.  The cost is higher for full representation.  The benefit is that the client does not have to learn the Rules of the Court, learn how to properly cite case law, or spend hours in the library learning how the law actually applies to their situation.  The client does not have to worry about missing a critical deadline or learning the best techniques for conducting an investigation.  The client can also skip learning the rules of evidence for trial – which can get very technical.

 Final Thoughts

LAR is not for everyone –

            LAR may be a good option if:

          If you have the time and ability to learn the law as it applies to your case.

          If you feel comfortable speaking publicly but just need help with strategy.

          If you are comfortable writing legal documents, but just need help with speaking in court.

          If you feel comfortable taking responsibility for your case.


            LAR is NOT a good option

                      If you don’t have the time to commit to learning the law as it relates to your case.

                      If your case is complex.

                     If you won’t be able to meet Court deadlines.

                      If you are simply trying to use LAR as a money saver.


If LAR sounds like a good option, you can always start that way and convert.  However, if you know at the start that handling your own case will be overwhelming, it is best not to start as LAR. 



Divorce – Division of Property & Bankruptcy – Part II

~ Using Limited Assistance Representation ~

Dividing marital property in divorceAs we saw in Part I – clear and precise division of property is crucial if one or both parties to a divorce plan to or need to utilize the protections of the Bankruptcy Code.  What if neither of you plan to file for bankruptcy?  The short answer is still to make sure you have a precise and clear division of property in your separation agreement.

The need for bankruptcy protections is often not planned for but rather a result of outside factors that undermine what once was a solid original plan.  What if one party suddenly loses their job?  Or one party – or the couple’s children – suddenly need medical care.  Making sure that equitable division of property, through your separation agreement, is as clear and precise as possible is a good idea period.

The best way to make sure your separation agreement clearly divides marital property is to hire a lawyer.  In Massachusetts, one attorney cannot represent both parties  to a divorce.  Hiring two attorneys is often cost prohibitive.  There is a solution!  The Massachusetts Probate and Family Court now authorizes Limited Assistance Representation (LAR).  Lawyers certified in LAR can submit their names for inclusion on the LAR list maintained by the Probate and Family Court.  Keep in mind that many other lawyers are LAR certified and you should ask when seeking an attorney.

Limited Assistance Representation allows an attorney to do just what you need.  For example, a LAR attorney can simply appear once in court for you or make one motion on your behalf.  They might also be employed to look over what you have written to the court or simply give you advise on strategy without ever appearing on your behalf.  An LAR attorney can still only represent one person in a divorce.  But the flexibility of having to pay for only what you need means both of you can hire an LAR attorney to look over your separation agreement.

Before making any calls to a lawyer, you might want to have as much work done as possible.  Make a list of the major issues of your marriage.  For most couples, this will be children, the marital home, pensions, earnings and cars.  A simple Google search (dividing marital property) can produce a more comprehensive list of major issues to a marriage.  Start going through these issues figuring out what your position is.  Do not try to compromise at first, simply write out your thoughts.

Once you have your list, sit down with your spouse (if possible) and work through how you think your separation agreement should be written.  Another Google search will give you samples of separation agreements.  One example of a separation agreement can be found by typing “Family Law Advocacy for Low and Moderate Income Families” into Google.  Chapter 5 of this book, entitled Divorce contains a sample separation agreement.

As you work through the major issues, remember that Massachusetts is an “equitable division” state when it comes to property.  Equitable does not mean equal – instead it means fair under the circumstances.  The Probate and Family Court Judge will use the same factors found in M.G.L. c 208 § 34 (Alimony) to determine whether the proposed property division is equitable.  It would be a good idea to check these out as you work on your separation agreement.  A list of these factors can be found by clicking here. (2013.07.01 Statutory Alimony Factors 208 34)

After you have come up with a proposed separation agreement, call the LAR lawyer you have chosen.  Explain your goals clearly to that attorney and solicit their suggestions on how to clearly and precisely divide the major issues of your marriage.  It is highly likely you may need more than one session with your LAR lawyer.  But even if your consultation requires two sessions each, this will be a better investment than going it alone – only to find out later that property was not divided as you thought or that ambiguity has now opened the door to many years of litigation through attempts at modification.



Divorce – Division of Property & Bankruptcy

Divorce rips couples apartProperly dividing property in a divorce is crucial and particularly so if either or both the parties may also need to enlist the protections of Bankruptcy after the divorce.  There are just certain legal processes which naturally must be considered together.  Most of us know about real estate sales and taxes, but in the stress of divorce, it is easy to overlook how bankruptcy may be the true fresh start needed for one or both of the parties.

Divorce is governed by state lawBankruptcy is governed federal law.  On the surface it would seem that since these two legal actions are governed by different sets of laws it should be easy to use one and then the other.  However, the power of the Bankruptcy Code can have profound implications on your divorce – even after it is over.

In Massachusetts, divorce covers generally covers two things.  First, divorce is the unmarrying of the parties – this is the easy part since no one is going to insist a couple remain married when one or both want out.  Second, divorce involves untangling the major issues of the marriage.  The major issues of the marriage include child custody, property division, and alimony, for example.  The untangling of the major issues to a marriage are particularly important for a couple – one or both of whom – where bankruptcy may be on the horizon.

Two major provisions of the Bankruptcy Code can immediately cause difficulties if not planned for.  First is the Automatic Stay. The other provision is the Bankruptcy Estate.  The Automatic Stay, which is found at 11 U.S.C. § 362, is designed to give the debtor some breathing room against creditors and allow creditors to begin preparing to present their cases – if necessary.  Although designed with the debtor in mind, who might be getting phone calls day and night and a barrage of letters, the Automatic Stay stops all State court action with a few exceptions.

What does this mean?  I am oversimplifying here, but in a nutshell it means that if your divorce is not complete (you have been issued a final decree of divorce), the Probate and Family Court must stop proceedings as they relate to property division.  You can imagine a scenario where the divorcing couple is selling their marital home and plan to split the profits – if any.  The Automatic Stay would halt the sale of the home. Although there are provisions in place to allow parties in a divorce to then petition the Bankruptcy Court to be allowed to continue the divorce proceedings, why go through this extra legal hurdle?

The second provision of the Bankruptcy Code which can have a major impact on divorce is what constitutes property of the bankruptcy estate.  This section can be found at 11 U.S.C. § 541 and generally includes the debtors interest in any property no matter where located and no matter how derived.  The purpose of this broad definition is to make sure legitimate creditors can get reimbursed for debts if possible.  Although most Chapter 7 (liquidation) cases are no asset – meaning that the listed creditors will not receive any payment since there are no assets in the bankruptcy estate to liquidate, divorcing couples need to be very careful when dividing property in the divorce action.

Normally, property division in a divorce is accomplished with a “separation agreement” that outlines the major issues of the marriage.  A Massachusetts Judge will approve this agreement if it seems reasonable and makes an equitable distribution of the property.  Many separation agreements do not make a clean division of property immediately.  Instead, the couple agrees “at some point in the future” to dispose of the marital home.  This happens frequently when children are involved and the spouse who is going to have primary custody retains the home so that the children are not disrupted.

A common example goes like this:

“The wife shall retain the use and benefit of the home until the youngest child is emancipated under this agreement. The husband, as part of his child support obligations, shall be solely responsible for the mortgage payment, insurance, and property taxes on the marital home, during the period where wife retains use and benefit of the marital home. After emancipation of the last child subject to this agreement, the wife shall sell the marital home and the profits from the sale of the marital home, if any, shall be split evenly.”

 Let’s just say that the agreement where this clause appears is approved and made part of the divorce by the Probate and Family Court Judge.  The appropriate amount of time has elapsed and the judgment of divorce and this agreement have become final.  Six months have gone by and now one party needs the protections of the Bankruptcy Code.  Does the marital home become part of the bankruptcy estate?  Can it be sold by the Trustee – liquidated to pay the creditors of the debtor?  Are the children now forced to move?  What happens to the husband’s child support payment obligations which were lowered as a result of his duty to pay for the home?

This may seem like an extreme example, but Courts across the nation have wrestled with these same questions for years.  Many times the answers Courts have come up with are not very pleasing to the goals of the divorcing couple.  If one or both spouse may possibly need the protections of bankruptcy, having a clear and precise separation agreement will prevent the collision of Family Law and Bankruptcy and turn it into a smooth merge.  Many resources are available on the internet or library but none of the sites or books properly or effectively address the intersection of the Bankruptcy Code and your divorce.  It is highly advisable that a couple seek legal advice if bankruptcy and divorce may be a possibility or necessary.


Separation Agreements – Part III; Modification Standards

~ Modifying A Merged Separation Agreement ~

During your divorce, you negotiated a separation agreement but since that time, some things have changed.  You would like to go back to court and modify your divorce judgment so that it reflects your current situation.  How do you go about this?  Can you petition the court to modify a judgment which includes a separation agreement?  This article deals only with modifying a merged agreement.  Part IV deals with the standard for modifying surviving agreement.

The very short answer is that a valid separation agreement may be modified.  However, a threshold question is whether the separation agreement merged with or survived the judgment of divorce.  In many cases, the agreement itself will specify which type it is.  Additionally, many judges will specify what type of separation agreement was presented to them in the Judgment of Divorce Nisi.  Ultimately though it is the intention of the parties which controls which type of agreement you have.

A merged and incorporated agreement may be modified rather easily.  The standard for filing a successful petition (called a complaint) for modification is “material change in circumstance.”[1]  If your agreement survived the judgment and lives on as a separate contract between you and your former spouse, the standard is much higher and the burden of proof much more difficult to meet.[2]

A material change in circumstances translates roughly into significant change.  The change must have taken place since the judge entered the order or judgment in your case.  Keep in mind that any modification which impacts the children of your marriage must also be in their best interests[3].  For example, trying to modify a child custody arrangement – such as a visitation schedule – must also be in the child’s best interest[4].

The Probate and Family Court Judge will have a lot of discretion when it comes to figuring out if the change is “material” or not.[5]  Some examples of cases where a material change in circumstances was found and the Court allowed modification are:

Remarriage – When the recipient spouse re-marries, this will end any alimony award unless the divorce decree states otherwise.  However, be aware that re-marriage of the paying spouse (and the possible additional expense of new family obligations) will generally not end the alimony to the former spouse[6]

Cohabitation  – Under the old rules, cohabitation, by the recipient spouse, with another person (such that it amounted to a martial situation where expenses were shared and obligations mutual) did not amount to a material change in circumstances which would end alimony[7].  This has now changed.  Under the Alimony Reform Act[8] “general term” alimony may now be suspended, reduced, or terminated when the recipient spouse cohabitates with another person.[9]

Death – death of either party to a divorce generally ends the alimony order unless the judgment states otherwise.[10]

Increase in Recipient’s Income or FundsIf the recipient spouse wins the lottery or gains some significant financial advantage this will generally be seen as eliminating the need for alimony. [11] The need of a recipient spouse is a key determination in the award of alimony under both the old law and new law.

Financial Problems of Payor – The involuntary financial problems of the paying spouse can amount to a material change in circumstances which allows for modification of support – either child or alimony.[12] Most often this means that the payor has lost their job, been demoted, or had some other significant financial setback which causes problems in their ability to pay.  The two prong analysis in alimony awards the payor’s ability to pay and the recipient’s need. But keep in mind that voluntary early retirement is generally not a reason to modify.[13]  A judge may be able to “attribute” income to a payor spouse who voluntarily retires or otherwise voluntarily reduces income.[14] Attribution basically means that the Court will determine what the spouse is capable of earning and make the calculation based upon that amount rather than actual earnings.

Emancipation of Child – When a child reaches 18 years of age, generally, the parents are no longer obligated to provide financial support[15].  However, emancipation is not always 18 years of age, and can depend upon a child’s special needs, or college aspirations, or the separation agreement.

There are, of course, many other situations which may trigger a modification of a merged separation agreement or judgment of divorce.  The key is that any modification being sought must be based upon a material (significant) change in circumstances since the last order or judgment in the case.  Keep in mind that any modification which has an impact on the children of your marriage will also need to be in their best interests.



[1] See Pierce v Pierce, 455 Mass. 286, 293 (2009), quoting from Schuler v Schuler, 382 Mass. 366, 368 (1981); M.G.L. chapter 208.

[2] Generally, to modify a surviving separation agreement something more than a material change in circumstance, or “countervailing equities” are required to be proven.  See generally, Knox v Remick, 371 Mass. 433 (1976).

[3] See, Ardizoni v Raymond, 40 Mass. App. Ct. 734, 738, citing Rolde v Rolde, 12 Mass. App. Ct. 389, 404 (1981) [When determining child custody awards in general, or modifications of child custody awards based upon changed circumstances, the guiding principle always has been the best interests of the children.

[4] See Adams v Adams, 459 Mass. 361, 393 (2011), “In any proceeding involving custody of a child, ‘as a matter of law and as a matter of humanity,’ the governing principle guiding a judge’s decision-making is to ensure custody rests with the parent who will promote the ‘child’s best interests.’”  Quoting from Hersey v Hersey, 271 Mass 545, 555 (1930) and Custody of Kali, 439 Mass. 834, 845 (2003).

[5] See, Bush v Bush, 402 Mass. 406, 411 (1988) – “In determining whether there has been a material change in the parties’ circumstances, the probate judge must weigh the relevant circumstances; the resolution of the various factors rests with the judge’s sound discretion.  Unless there is no basis in the record for the judge’s decision, we defer to the judge’s evaluation of the evidence presented at trial.”

[6] See, Pemberton v Pemberton, 9 Mass. App. Ct. 9, 13-16, (1980)

[7] See, Gottsegen v Gottsegen, 397 Mass 617 (1986), where it was determined that the wife’s cohabitation, standing by itself, was not enough to terminate her award of alimony being paid by the former husband.

[8] Session Law Acts of 2011, Chapter 124 – modifying Massachusetts General Laws, Chapter 208.

[9] See, Massachusetts General Laws, chapter 208, section 49(d)

[10] See, Cohen v Feuer, 442 Mass. 151 (2004).

[11] See, Harris v Harris, 23 Mass. App. Ct. 931 (1986), where the recipient benefited by a significant inheritance which established both a “material change in circumstances” and the required proof that a reduction in alimony was warranted.  See also Winternitz v Winternitz, 19 Mass. App. Ct. 228, (1985) where the recipient spouse had inherited money and used that to increase her income through investments.

[12] See, Sico v Sico, 9 Mass. App. Ct. 882 (1980);

[13] See, Larson v Larson, 37 Mass. App. Ct. 106, (1994) and Greenberg v Greenberg, 68 Mass. App. Ct. 344 (2007), where it was found that the payor’s retirement was voluntary and that retirement alone was not enough to trigger a modification based upon a material change in circumstance.

[14] See, Schuler v Schuler, 382 Mass. 366 (1981)  See also,  Bassette v Bartolucci, 38 Mass. App. Ct. 732, (1995) where the Court found the calculation for support based upon what the payor should be earning rather than what they actually earned.

[15] See generally, Fugere v Fugere, 24 Mass. App. Ct. 758, 760-761, (1985)

Separation Agreements – Part II: Merging vs Surviving Agreements

Mutual Agreement One key feature of a separation agreement triggers a lot of confusion – merger or survival.  The difference is significant and will determine how you can enforce any rights you negotiate or may have.  Knowing the difference is keystone to producing a fair separation agreement.

On the surface, the difference – does it merge or does it survive – seems easy to grasp and possibly insignificant.  In a nutshell, a separation agreement which merges with the divorce becomes part of the divorce judgment.  By becoming part of the divorce judgment, the separation agreement loses its own identity.  A surviving separation agreement will emerge from the divorce as an independent contract.

The significance, however, lies in the consequences of your choice which might not be immediately apparent.  Essentially, it is a classic play between how “the theory of the negotiated separation agreement” meshes with “the reality on the ground” of each party’s needs and goals once they begin living their separate lives.  Generally, a merged separation agreement can be modified with a lower standard of proof than a surviving one.  Knowing how difficult it can be to modify a surviving separation agreement is key to understanding how such a choice will impact your future.

For example, imagine that both spouses are on completely equal footing, economically, educationally, socially, etc. and both desire a clean break.  In that case, a surviving separation agreement will probably work well.  Neither spouse will be able to go back to court and suddenly demand alimony or demand money for health insurance.  The legal standard to modify a surviving separation agreement is “countervailing equities.”[1]  Countervailing equities is a significant hurdle to modification.

Rarely are both spouses on completely equal footing and this is particularly true when children are or were involved.  Even without children, there are many reasons two people will need a merged separation agreement.  With children a Judge is not likely to allow a separation agreement which survives when it comes to child support or custody.  If you propose a surviving agreement with children you may end up with a hybrid – that survives with all respects except child support and child custody.

Modifying a merged separation agreement is accomplished with a Complaint for Modification.  The legal standard to modify, generally, is “material change in circumstances.”[2]  A Probate and Family Law judge has a lot of discretion to determine whether the change alleged is material[3] but will also examine whether the proposed modification is actually in the best interests of the child(ren) when applicable.[4]

As you negotiate the major issues of your marriage, knowing whether this will be a surviving agreement or merged one can impact the discussions.  At minimum it may help guide your choice about whether to employ a lawyer or at what point to call one in it things get tricky.



[1] Knox v Remick, 371 Mass. 433, 435 (1976).  But also see, DeCristofaro v DeCristofaro, 24 Mass. App. Ct. 231, 235 (1989) which stated that the higher standard to modify a surviving separation agreement is “something more than a ‘ material change in circumstances.’”

[2] Stansel v Stansel, 385 Mass 510, 515 (1982); but also see Massachusetts General Laws M.G.L., chapter 208.

[3] See Heistand v Heistand, 384 mass 20, 27-28 (1981).

[4] See M.G.L. chapter 208; M.G.L. chapter 119;

Separation Agreements – An Overview

Divorce agreementSeparation agreements are crucial to the divorce process in Massachusetts.  Only a very small percentage of divorce cases filed actually go to trial, with very good reason.  Money and emotional costs for a full trial can be high for each party and very high compared to the benefit. The best way to keep control of the outcome, it to negotiate and come to some reasonable arrangement about the untangling of your marriage.

Sooner rather than later, your attorney should mention the benefit that negotiating and preparing a separation agreement will have on your case.  A properly written (key words being “properly written”) separation agreement will accomplish three goals.  First it will deal with every major issue of the marriage so that the judge and court system does not have to.  Second, it will be equitable.  Equitable is not the same as 50/50 but more synonymous with fair.  Finally, the separation agreement should be worded with enough clarity to minimize (or eliminate if possible) any later dispute.

Remember that two things happen during a divorce.  The first thing is that you are unmarried.  The other thing to happen will be the unwinding of your financial affairs.  Unmarrying a couple is the easy part.  Depending on the length of the marriage, children, and many other factors, unwinding the spouse’s finances can become a monumental task.  The more you and your spouse can agree upon regarding this unwinding the better.

The major issues of a marriage can vary, but generally they include at least:

  • Initial Recitals of the marriage; the parties, where married, when married, name of children of the marriage, etc.
  • Child Custody
  • Child Support
  • Alimony or spousal support
  • Health Insurance
  • Life Insurance
  • The marital home
  • Division of other property; cars, boats, bank accounts, businesses
  • Taxes

Massachusetts is an equitable distribution state.  This means that the goal of property division in divorce actions should be equitable.  Equitable does not mean equal or 50/50.  Instead the term equitable distribution means fair.  A good example of equitable comes up in one car families.  Let’s say you have a car currently valued at $10,000.00.  Each spouse is equitably entitled to $5,000.00 but you cannot just cut the car in half.  So during the agreement, one spouse will keep the car but give up $5,000.00 in value elsewhere, perhaps by giving up what is in a savings account.

The Judge who will eventually review your separation agreement as part of the divorce proceedings will want to know and see that the marital property was divided equitably.  In my experience Judges of the Probate and Family Court pay very close attention to equitable distribution in the areas of retirement benefits and the martial home.  Be prepared to explain how things were divided reasonably and equitably.

A great deal of time should be put into the language of your separation agreement.  If you are using a lawyer, chances are very high the necessary effort will be automatically invested in clear language.  Unfortunately, when couples negotiate their own agreement or use a mediator (who does not represent either of your interests) language can be fuzzy.  This is important later!  Ask yourself, are your wishes clearly stated or are they subject to a few interpretations?  Do your wishes take into account what happens during various scenarios?

Language is even more important when you have children or there will be spousal support obligations for years to come. For example, imagine that you have included a requirement for one spouse (with a very secure government job) to provide health insurance for the other spouse (who up to the point of divorce only worked part time in unsecure or temporary positions).  This may seem like a simple line in the separation agreement.  But what happens when the spouse with the secure government job is laid off because of government cutbacks?  Or what happens if the spouse working part time at a start-up company is asked to take on a major role as the company prepares to go public and now has the best opportunity to provide health insurance?

The bottom line is that a separation agreement is a very important part of your divorce case.  More negotiation and agreement will allow your case to proceed through the process faster.  But in creating your agreement don’t forget that it must dispose of the major issues of the marriage, make an equitable distribution of the marital estate, and clearly express the agreement you come to.



2013.04.26 Separation Agreements Overview