A Spouse’s Bad Conduct and its Impact on Property Division in a Massachusetts Divorce

By Jonathan Fields, Esq.

One of the most frequent questions clients ask divorce attorneys is whether a spouse’s bad conduct will impact the financial settlement in a divorce.  This article explores the Massachusetts law in this area.

The Massachusetts property division statute, G.L. c.208 s.34, requires courts to examine multiple factors in determining the division of the marital estate upon divorce.  The statute articulates mandatory and non-mandatory considerations.  Practically speaking, the length of the marriage may be the most important consideration upon which all further analyses depends.[1]  The relative economic and non-economic contributions of the parties (paradoxically, a non-mandatory consideration under the statute) has been elevated by the case law to be the “touchstone of an equitable division of the marital estate.”  Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996).  The character of an asset (whether it was inherited and/or premarital) is another prominent consideration.  Rice v. Rice, 372 Mass. 398 (1977).

The statute also includes, as a mandatory consideration, “the conduct of the parties during the marriage.”  On the far end of the spectrum of conduct affecting a property division is a case in which the wife solicited the husband’s murder.  The trial court awarded the husband 90% of the marital estate and the Appeals Court upheld the division.  Wolcott v. Wolcott, 78 Mass. App. Ct. 539 (2011).

Obviously, conduct less egregious than that in Wolcott can also form the basis of a disparate division.  Johnson v. Johnson, 22 Mass. App. Ct. 955, 956 (1986) (judge properly considered “husband’s abusive conduct, both physical and mental”); Bacon v. Bacon, 26 Mass. App. Ct. 117, 120 (1988) (judgment affirmed where judge considered fact that “[a]t times, early in the marriage, the husband was abusive to the wife”).

[1] As a leading article describing the theory underlying the enactment of G.L. c.208 s.34 in 1974 puts it, the “length of the marriage is a critical consideration in assignment of property.  The equities of assigning to one party a portion of the other’s estate are clearly diminished where the marriage is only of brief duration …” Inker, Walsh and Perocchi, Alimony and the Assignment of Property, X Suffolk Univ.Law.Rev 1 (1975).

Read full article here.

 

Removal of Children to Another Jurisdiction: What Every Parent Should Know

By Jonathan E. Fields, Esq.

When a parent wants to move with the child outside of Massachusetts, and the other parent does not consent to the removal, a complex legal analysis must be undertaken in order to determine the rights and responsibilities of the parents and the child.  If the parties cannot come to an agreement themselves, a Guardian Ad Litem (GAL), usually an attorney, is often appointed to investigate and report on the matter.  The parties might settle after the GAL report but, if not, each has a right to pursue the case to trial and have a judge decide the matter.

This article seeks to explain the law of removal – and to be of use to both parties and practitioners.

Read article here.

For all relevant Massachusetts cases on removal, go here and scroll down for “Removal.”

Alimony and the TCJA: Common Misconceptions Every Divorcing Parent Should Know

By Jonathan Fields, Esq.

Under the Tax Cuts and Jobs Act of 2017 (TCJA), alimony will no longer be tax deductible to the payor and no longer tax includable to the payee effective January 1, 2019.  The law was a shock to many, particularly divorce lawyers, most of whom had gotten quite used to the way things had been for the last 75 years.  There is a saving grace in the TCJA, however — qualifying agreements and modifications can be grandfathered into the old taxability treatment subject to certain requirements.  Specifically, unless the parties opt-in to the new law, the TCJA applies to “decree[s] of divorce or separate maintenance or written instrument[s] incident to such … decree[s]” executed after January 1, 2019.  To unwind this legislative convolution:  the old taxability provisions can apply to your qualifying pre-2019 agreement unless you both agree that you don’t want them to.  Still a mouthful, but that’s the way Congress wrote it.

The biggest misconception about alimony and the TCJA, frequently repeated in the lay media, and even by legal commentators, is that the qualifying instrument must be a final divorce judgment.  It does not.  You do not necessarily have to have a final divorce judgment by the end of the year to be grandfathered.  Lawyers, who like to be “better safe than sorry” may prefer to have a divorce judgment but, when you are fighting this issue out in December of this year without the luxury of time, it’s worthwhile to take a closer look at what is actually required.

Procrastinators can rejoice. TCJA continued the requirement from IRC s.71 that a payment made to or on behalf of a spouse or ex-spouse pursuant to a “written instrument incident to [a divorce decree]” qualifies for alimony treatment.  TCJA further sets forth that such instruments are “as defined in s.71… as in effect before” TCJA.   Presumably, the case law from the past several decades interpreting the clause remains relevant and binding.

So, basically, in many instances, all a couple may need to qualify for grandfathered alimony treatment is a contract by December 31, 2018 that is a “written instrument incident to [a divorce decree]” pursuant to the statute. The “contract” here is no more prescriptive than a common law “meeting of the minds” contract – except that, unlike in the common law, it must be in writing.  A separation agreement signed by the parties and approved by the court should do – no need to wait for a final judgment of divorce 90 to 120 days later.  A separation agreement not yet approved by the court should also suffice.  But it doesn’t even have to be that formal.  Two Tax Court opinions illustrate the flexibility of the “written instrument incident to a divorce” requirement.

A Tax Court Memorandum Opinion, Leventhal, T.C. Memo. 2000-92, made clear a “meeting of the minds” requirement, particularly that there be a “clear statement in written form memorializing the terms of the support between the parties.”  In this case, one spouse’s written assent to a letter proposal of support by the other spouse was a sufficient writing to bring it within IRC s.71.  Moreover, Leventhal tells us, it was not necessary to articulate a specific amount of support so long as “there is an ascertainable standard with which to calculate support amounts.”

A Tax Court Summary Opinion, Micek, T. C. Summ. Op. 2011-45 (2011), is also instructive for our purposes.  Here, the couple separated in 1997 and entered into an oral agreement in 1999 that the husband pay the wife alimony of $1,250 per week.  Later that year, the husband signed a “spousal support affidavit” agreeing, or reaffirming, the payment of alimony in the same amount.  In 2003, the husband stopped paying because he became disabled and, presumably, was unable to earn income. The wife’s attorney then wrote to the husband, inquiring as to why the alimony has stopped.  Think about this: there is still no divorce pending at this point, the wife hasn’t signed anything yet, and the wife’s lawyer wrote the letter described above four years after the husband started paying alimony.

A few more years go by.  At some point – the opinion does not make clear when – the husband filed for divorce. Presumably satisfied that neither party had the means to support the other, the parties’ agreement incorporated in the divorce judgment mutual waivers of present and future alimony. In 2009, the IRS filed a notice of deficiency disallowing husband’s alimony deductions for the years 2000 to 2003 – the period prior to the divorce during which the husband was paying alimony to the wife.  All of the payments at issue were made prior to the filing of the divorce.

The husband took the matter to Tax Court.  The issue before the court was whether the alimony was paid pursuant to a “written instrument incident to [a divorce decree].”  The Tax Court agreed with the taxpayer, finding that alimony was paid pursuant to such an instrument and, therefore, deductible to him and includible to his ex-wife.  The Tax Court reasoned that (1) the so-called “spousal support affidavit” signed by the husband in combination with (2) the letter from wife’s attorney inquiring as to why he had stopped paying alimony (which evidenced her client’s understanding that alimony was to be paid) was sufficient to qualify under IRC s.71.  That is, a written instrument (the affidavit) signed by one party and the letter from wife’s attorney was together a sufficient “written instrument” that evidenced the meeting of the minds between the parties.

Considering the significant time gap between the instrument and the divorce filing, it is striking that Micek did not focus on the requirement that the “written instrument” be “incident to [a divorce decree].”  We might deduce from Micek that timing is not dispositive to the “incident to” requirement but that it is, rather, a sort of “totality of the circumstances” analysis.  Indeed, the parties had been living separately and the husband had been paying alimony for several years and, eventually, they got around to making de jure what had been de facto. From this, it would appear a logical construction that the alimony payments at issue, though made several years before a complaint for divorce, were “incident to” a divorce.

In any event, to play it safe, the practitioner should endeavor to have the contract executed while a divorce is pending or imminent in order to meet the “incident to divorce” requirement – so, unlike Mr. Micek, nobody is relying on the Tax Court to save the day.  Bottom line: a divorce judgment is not the only way, under the TCJA, to get the preferential tax treatment that alimony judgments today can enjoy.

In the context of Micek and the “incident to” discussion above, consider prenuptial or postnuptial agreements.  Although there is no case law on the issue, these do not appear to be qualifying agreements pursuant to IRC s.71.  They are not, in the same sense as the Micek agreement, “incident to” a divorce decree – even if one of the parties filed for divorce shortly after signing.

Two additional issues merit consideration. (1) Must a 2018 agreement contain a present award of alimony and (2) How should the practitioner handle 2018 temporary orders of alimony followed by a 2019 (or later) divorce judgment?

As for (1), it is unclear whether a 2018 agreement that contains no present award of alimony but preserves the rights of the parties to future alimony would qualify for preferential retroactive treatment.  On the one hand, TCJA’s new alimony rules exempt from its application “any divorce or separation instrument” executed before 2019.  That would suggest that any agreement would suffice – whether or not it includes a present award of alimony.  On the other hand, elsewhere in TCJA, alimony is defined, subject to other conditions, as payments made to or on behalf of a spouse pursuant to a “divorce or separation instrument.”  Arguably, read together, there needs to be a present award of alimony – actual payments must be made (or required).  In light of the uncertainty, the cautious practitioner would do well to include a requirement of a present payment of alimony, if only a nominal amount, and a statement in the agreement to the effect that the parties intend the agreement to qualify for tax preferential treatment per the TCJA.

As for (2), temporary orders pose challenges when dealing with TCJA and retroactivity.  If there is a 2018 temporary order of alimony followed by a 2019 divorce judgment, the temporary order is extinguished.  With that, the link to retroactivity may be severed.  That is not clear, of course, but it is a possibility.  Therefore, the practitioner may want the judgment to incorporate the temporary order so as to preserve best as possible the benefits of a qualifying retroactive instrument.

This position is generally consistent with the IRS regulations for alimony pursuant to the Tax Reform Act of 1984 – which also dealt with the issue of the retroactive application of that law to instruments entered prior to that Act’s effective date of January 1, 1985.  Those regulations (which, by the way, have been “temporary” for 34 years) made clear, for example, that if a 1985 divorce judgment incorporated without change the terms of a 1984 instrument, that 1985 judgment would be grandfathered under the then pre-existing tax law. 26 CFR s1.71-1T (Q-A #26).

The 1984 regulations do have one caveat that the practitioner may wish to consider – the subsequent judgment must incorporate the terms of the prior instrument “without change.”  Clearly, we don’t know if the IRS will interpret the TCJA’s alimony provisions in the same way but it may be worthwhile to at least consider these regulations as we venture into uncharted territory.  If the IRS were to adopt this position with respect to TCJA, it would certainly be problematic in the event a 2018 judgment provides for a nominal alimony payment and a post-2018 judgment calls for a larger payment.

In the months ahead, while many labor to complete agreements by year’s end, we can hope for clarifying guidance from the IRS.  In the meantime, especially in the gray areas, practitioners would do well to let clients know, in writing, where there are uncertainties as to whether their agreements will be grandfathered.

Taxation of Property Division in Divorce: What You Need to Know

By Jonathan Fields, Esq.

I.  General Rules

Under §1041 of the Internal Revenue Code (IRC), the general rule is that neither gain nor loss is recognized on transfers of property between spouses or ex-spouses “incident to a divorce.”   A transfer “incident to a divorce” is one that occurs within one year of the divorce and not more than six years from the divorce.  If it occurs after six years but it is clear from the divorce agreement that the transfer is related to the divorce, §1041 still applies.

Under §1041, the gain or loss is deferred and the transferee former spouse gets a “carryover basis” – that is, the transferee assumes the transferor’s tax basis in the property at the time of transfer and such tax basis is carried over for income tax purposes.

A caveat — the deferral benefits of §1041 do not apply where the transferee spouse is a “non-resident alien.”  A spouse who is not a U.S. citizen and has no permanent resident (“green card”) status may be considered a non-resident alien if they do not meet the “substantial presence” test.  IRS Publication 519 (2018).

Simple enough.  But there are multiple exceptions to §1041’s non-recognition rule – each of which should be carefully scrutinized when dividing assets in a divorce.

II.  Exceptions

       A.   Sale of Marital Home

In dealing with the sale of the principal marital residence in the context of a divorce, §1041 does not apply. Rather, we look to IRC §121 — which provides that a taxpayer can exclude up to $250,000 of capital gain from the sale of the principal residence if filing a separate tax return, or up to $500,000 for a joint return, provided the following requirements are met:

  • During the five-year period ending on the date of the sale or exchange, the residence must have been owned by either spouse and used by both spouses as their principal residence for periods aggregating two years or more.
  • An individual shall be treated as using property as such individual’s principal residence during any period of ownership while such individual’s spouse or former spouse is granted use of the property under a divorce or separation instrument.
  • If a residence is transferred to a taxpayer incident to a dissolution of marriage, the time the taxpayer’s spouse or former spouse owned the residence is added to the taxpayer’s period of ownership.
  • The exclusion can only be applied to one residence every two years.

      B. Retirement Assets

Retirement assets such as a 401-k or 403-b are not covered by §1041 but, rather, by a law called ERISA; as such, they cannot be divided except by a qualified domestic relations order (QDRO) incident to a divorce.  The division, which creates an account for the non-participant spouse (called the “alternate payee”), does not trigger tax consequences so long as no distribution is made.

IRA’s, on the other hand, are not covered by ERISA and, therefore, do not require a QDRO in order to be divided.  In dividing an IRA, be certain not to liquidate the account.  Instead, do a trustee-to-trustee transfer (a direct transfer) of the IRA funds, moving them directly from one spouse’s IRA to the other spouse’s account. That way, the IRA will be split and there will be no tax liability for either spouse.

In most cases, post-division distributions from ERISA and non-ERISA plans will trigger tax consequences to the distributee at ordinary income rates.  For recipients under 59½ years of age, an additional ten percent early distribution penalty will also apply.  The early distribution penalty is an amount equal to ten percent of the early distribution.

Alternate payee spouses who require immediate cash from a retirement plan post-divorce can look to IRC 72(t) for relief.  Under that provision, distributions to a former spouse from an ERISA plan pursuant to a QDRO will be subject to ordinary income tax — but are exempt from the ten percent penalty tax even if the recipient is younger than 59½ years of age.

     C.  Assignment of Income Doctrine

Another exception to the non-recognition rule of §1041 is the assignment of income doctrine.  A bedrock principle of tax law is that the person who earned the income is taxed on it regardless of who receives the proceeds.   The assignment of income doctrine is implicated when the right to receive the income has already accrued, and the parties assign that right to the spouse who did not earn the income.

           1.   Income Producing Property

Consider a divorce where the husband owns income-producing rental property and he assigns the rental income to the wife on the assumption that this will shift the income to her and she, then, will pay taxes at her lower tax rate.  Under the assignment of income doctrine, that will not work.  In order to achieve the objective that she pays taxes on the rental income at her tax rate, she would have to own the property.  Another income-shifting strategy, of course, would be to pay alimony which will continue to be deductible to the payor and includable to the payee for agreements through the end of 2018.

            2.   Savings Bonds

An ostensibly simple transfer of savings bonds is anything but simple.  A spouse who transfers U.S. savings bonds to a former spouse incident to a divorce must recognize as income in the year of transfer the deferred, accrued, and unpaid interest attributed to the bonds.

            3.   Other Assets Not Capable of Being Assigned

Particularly with highly compensated employees, a variety of other income-producing assets are typically not permitted to be assigned to others. Examples of these include: non-qualified deferred compensation plans, stock options, and restricted stock units.  With these assets, the owner is liable for taxes based on the realization of income.  And the support is usually paid to the non-owner spouse when the income is realized as well.

     D.  Corporate Redemptions

As noted, §1041’s non-recognition rules apply to transfers of property between spouses in a divorce. Therefore, a transfer of ownership of a closely held business in divorce does not trigger gain or loss if it is directly between the spouses.  Alternatively, a transaction involving a spouse who transfers shares to the corporation in exchange for redemption proceeds triggers rules that are much more complex.

In the event a transfer directly between spouses is not feasible or appropriate and a corporate redemption is necessary, one of the spouses must pay the taxes.  The good news is that the regulations allow divorcing couples to elect the tax treatment they want — to decide how (and to whom) the stock redemptions will be taxed.  For example, depending on certain factors, the couple can either elect to have the transferor or transferee spouse taxed on the redemption proceeds.  26 C.F.R. §§ 1.1041­2(c).

IV.   Conclusion

Tax issues in divorce can be complex and mistakes costly.  Make sure your attorney has a grasp of these laws before you decide to hire them.

 

Article by Attorney Vicki L. Shemin Featured in Massachusetts Lawyers Weekly

Inspired lawyer proposes Bench-Bar Civility Honor Roll

Across the nation and in Massachusetts, there has been a call to arms to promulgate civility in all bench-bar facets. For example, annually the American Inns of Court designates a month to spotlight the need to work toward a “vision of a legal profession and judiciary dedicated to professionalism, ethics, civility and excellence.”

And, as recently as Feb. 22, the Massachusetts Bar Association held a program on “How the Bench and Bar Can Work Together to Improve Lawyer Civility.” While I believe we can all agree that it is easy to “talk the talk,” when there are no directional signposts to navigate theory into practice insofar as “walking the talk,” we are left to wonder where the rubber meets the road. Just three days after the MBA conference, I was privileged to have witnessed firsthand a spontaneous act of civility at its finest.

At long last, on Feb. 25, we had a 9 a.m. hearing on an uncontested G.L.c. 208, §1A, divorce case. The parties had been waiting since July 2020 for their court date. After two and a half hours in the Zoom waiting room, parties and counsel were finally called for the hearing.

shemin-vicki

The judge asked for a clarification and written edit to the child support section of the separation agreement and told us she could not approve the agreement as is.

After attorney Jared Wood and I hammered out a written revision, attorney Wood snatched victory from the jaws of defeat: He dashed out to his car, drove to the parties’ homes to get their original signatures on the edited agreement, and then rushed to the Middlesex County courthouse to flag down a court officer and get the revised agreement into the hands of the judge’s clerk. (There may or may not have been the necessity for attorney Wood to have not one but two McDonald’s cheeseburgers and a milkshake on the way back to his office, for his emotional and physical fortification.)

Just three days after the MBA conference, I was privileged to have witnessed firsthand a spontaneous act of civility at its finest.

At 3 p.m., parties and counsel took a leap of faith by signing back into the judge’s Zoom waiting room. With five minutes to spare, at 3:55 p.m., the judge gave us a second call, enabling the parties to have their long-awaited hearing and their agreement approved. None of this could have happened without attorney Wood’s tenacity, grace and kindness under pressure. He literally went the extra mile(s)! In his honor, I propose that we institute a Bench-Bar Civility Honor Roll to inspire us to attain the lofty theoretical “vision of a legal profession and judiciary dedicated to professionalism, ethics, civility and excellence” — and to celebrate the role models among us who have truly elevated their professional practices as models of civility. For, in the end, they are our guideposts.  See full article

Vicki L. Shemin is a partner at Fields & Dennis in Wellesley. She can be contacted at VShemin@FieldsDennis.com.

Expertise Selects Fields and Dennis LLP for Best Divorce Lawyers in Boston for 2021

Expertise selected Fields and Dennis as one of the top Divorce Lawyers in the Boston area.

Each year Expertise.com reviews over 326 divorce lawyers in the Boston area to find the top 19 in the area.  Fields and Dennis LLP was selected as one of them. They base their selections on five criteria.

  • Availability, or its responsiveness and availability to their customers.
  • Qualifications, do they build customer confidence with their licensing, accreditations, and awards?
  • Reputation, do they have a history of outstanding service?
  • Experience, are they masters of their craft?
  • Professionalism, do they provide service with honesty, reliability, and respect.

Fields and Dennis LLP has met and exceeded these expectations!

Advice On Cooperative Co-Parenting During & After An Acrimonious Divorce: It will Improve your Mental Health

By Vicki L. Shemin, J.D., LICSW, ACSW

Once every 30 or so cases, if a family law attorney is fortunate, she may come across parents who are able to rise above the fray and put their children front-and-center. So remarkable are these instances that they break the mold of what we traditionally see in our cases – particularly when the cases are protracted, there has been deception of one kind or another in the marriage, and/or the parting is bitter and hostile.

The anonymous letter you are about to read is from a mother whose matter checked all of those boxes. Throughout the case that went on months and months longer than it should have, I was constantly amazed to observe how the two parents were able to pull off the seemingly impossible: co-parent as if they were not locked in a rancorous legal battle. While it is so easy to “talk the talk,” I was honored to bear witness to this Mom and her ex who “walked the talk.” So impressed was I with her example that I asked her to write a letter to other parents in like circumstances. I hope her example will prove an inspiration for all divorced/divorcing parents – and their lawyers – who read her words.

“Anyone going through a divorce with kids knows the guilt of feeling like you shattered a childhood full of happy family memories. Will divorce traumatize my children and make them distrust the entire concept of love and commitment forever?  If you are going through a divorce then clearly it’s the only choice  – if there was any way to save the marriage, you would have.  But amid the rage and frustration, there is still choice and control you can have about how you co-parent.  Even though my own divorce negotiations were protracted, bitter, and painful, the one thing I could control was the kind of co-parent I was – even if it meant swallowing my pride.  Now that I am on the other side of it, I know that it was worth it.

Like all marriages, each divorce is different.  The bitter resentment, the heartbreaking disappointment, the burning anger, the maddening frustration – the flavors of sadness and umbrage that permeate each decoupling are so deeply personal that they are nearly impossible to explain to someone outside the broken union.  So how can one divorced person ever give any practical guidance to anyone else going through this mess?  When it comes to divorce with kids, I think some words of advice are true for nearly all situations: compartmentalize, take the high road for the kids’ sake, and have a long-range view.  There is no winner and there is no loser – there is just your duty to be the best parent you can be to your kids. They were not to blame for your failed partnership and they don’t deserve to bear the brunt of your conflict.  Divorce is never smooth for kids but I believe that having parents that can sit next to each other at graduation makes it a hundred times less traumatic.

When I first asked my ex-husband for a divorce, the conversation was desperately sad.  There was no way for us to remain married and yet we had two elementary-school aged daughters who had lived a charmed life and had no inkling of the troubles that had been brewing for years.  Our heart broke for the havoc we were about to wreak on their sweet and innocent lives.  Despite failing as husband and wife, we had succeeded at parenting.  We adored them equally and both wanted what is best for them.  We hugged and cried. We planned on quickly dividing our assets and determining a parenting schedule.  Surely, we would work it all out with no issues. We were not like other people who had ugly acrimonious divorces.   Famous last words.

The next year brought pain and anger unlike any I’ve experienced before.  I felt betrayed, deceived, and bamboozled by my ex-husband as we moved through endless negotiations.  I raged and seethed. Our lawyers exchanged scathing letters and threatened litigation.  The union that I once felt sad about breaking felt more and more poisoned as I stayed up nights pacing and doing financial calculations.  And yet, as we hissed angry words about money, we continued to act as a team for our daughters.  As proposals were fired off and rejected by our lawyers, we took them out to dinner for their birthdays together.  We went to their soccer games together.  We sat next to each other at their plays.  We visited each other and I offered him tea and cookies in front of the girls.  I sent him photographs of the kids doing cute things.  We were flexible with moving parenting days around to suit our work schedules or kids’ activities.  We divided and conquered when each kid had to be at a different activity at the same time.

So how were we able to do it? I can speak only for myself of course, but I consciously compartmentalized, swallowed my pride for the kids’ sake, and had a long-term perspective.

No matter the circumstances of the divorce, every child deserves parents that are adults in control.  When adults in control have personal problems, they go to their day jobs and put those problems aside to do their work.  I viewed co-parenting as the most important job of my life.  That means I consciously compartmentalized my anger with my ex from his love for our daughters. I vented my fury about the negotiations to friends and family (and my lawyer of course).  However, when it came to interacting with my ex on child-related issues, I put those feelings in a separate box and forced myself to be an amicable co-parent – because that is what my children deserved.  I treated him as two separate people – the man who is the adversary in the negotiations and the man who is the father of our children.   I was furious at the former; and I was gracious and civil to the latter.  It was not always easy but I reminded myself that I am an adult in control.  It meant lots of deep breaths, remembering happy family memories, and talking myself down.  But even on days when I received particularly infuriating correspondence or yet another untenable settlement proposal, I sent friendly texts about playdates and piano lessons.

Grace in co-parenting is not always reciprocated.  But my advice is to just let it go – swallow your pride, laugh it off with friends, and move on.  Of course, taking the high road is admittedly hard.  For example, it stung when my ex did not remind my daughters to wish me a happy Mother’s Day while they were with him that weekend.  It would have been easy to get back at him a month later.  But when it came to Father’s Day I made sure the girls made cards and presents to celebrate their dad.  Because they are still young and need reminding of such things – and I don’t want them to grow up with the memories of having forgotten these days and hurt their parents’ feelings.  I intend to always remind them of such occasions and help pick out gifts for him for birthdays or holidays. Similarly, I will never speak ill to my kids about their dad or anyone on his side of the family, even if I believe some of them have treated me unkindly.  Kids deserve untarnished relationships with their grandparents, uncles, aunts, and cousins.  They should never feel any guilt about complicated adult conflicts that have nothing to do with anyone’s genuine love for them.

There were some people that gave me advice to act counter to these principles when they thought I was being bullied or taken advantage of financially.   I am glad I did not heed these words.   I appreciate that those that gave me this advice did it out of love for me.  But here is my suggestion to anyone else going through this:  don’t take anyone’s advice to get nasty or to play emotional games when it comes to parenting.  Trust your own instincts to protect the kids from being involved in the conflict.  Despite whatever differences led to the divorce, try to visualize life ten, fifteen years from now.  Your ex will forever be the parent of your children.  And that means you will have to parent them together forever.  Life is long, kids are unpredictable, and parenting throws curveballs – a child can get sick, a child can experience emotional or behavioral challenges, a child might need extra attention.  That is when you need to be partners more than ever.  The impulse to do short-term damage is not worth damaging the long-term co-parenting team.  The best thing I did during the co-parenting process is to force myself to have long-range perspective.

We finally reached a settlement over a year later and the divorce became final a few months after that.  I was exhausted and relieved to close that chapter of my life.  But more than anything I felt proud of how we parented during the process.  One of our children is experiencing some emotional difficulties and our co-parenting teamwork has proved to be invaluable.  It is hard to be a single parent.  A trusted co-parent that loves your child as much as you do is vital.  I am so grateful to have the ability to call on my ex for support even on his non-parenting days or to have the flexibility to re-arrange the custody schedule to address the girls’ needs for space from each other.  Had I damaged the co-parenting relationship, who knows if that would be possible.

If I could have done anything differently during the co-parenting process is to worry less about the parenting schedule.  I had initially thought that the girls would have one primary home and I was devastated when my ex pushed for 50/50 schedule.  (I was so hysterical during this conversation with my ex that I excused myself to aggressively jump up and down in my bathroom like a crazy person – an out-of-character behavior for me!).  But now I think the schedule works out wonderfully, especially with the flexibility to visit and see the kids during the “off” days that an amicable co-parenting relationship allows.  Having equal time with both parents gives stability and structure for the children, and kid-free time allows adults to pursue their own interests.

After the divorce was final, my ex purchased a home in my neighborhood and I am thrilled: the proximity brings even more consistency for the kids and makes travel between homes for things like forgotten mittens, books, or just a hug all that much easier.

With the passage of time, the boiling anger felt during the divorce process quiets to a simmer and eventually cools off.  And that makes compartmentalizing easier and ultimately unnecessary.   Sure, flare-ups of conflict will arise.  But if you built a foundation of respectful and amicable co-parenting then you can move past those conflicts with grace.  Your kids deserve it.”

Vicki L. Shemin, J.D., LICSW, ACSW, a family law attorney, mediator, collaborative law attorney, divorce coach, and clinical social worker, is a partner at Fields and Dennis LLP in Wellesley, Massachusetts.  She can be reached at 781.489.6776 or VShemin@FieldsDennis.com.

 

A Diamond is Forever, But the Engagement Ring May Be Ne’er

The article below was written by Vicki L. Shemin, J.D., LICSW, ACSW  and published in Citybizlist on January 25, 2021

Lest you think that the proprieties and perplexities surrounding broken engagements are a modern phenomenon, we need only look back to the 15th century.

It is said that in 1477, Archduke Maximillian of Austria commissioned the very first diamond engagement ring on record for his betrothed, Mary of Burgundy, thus setting a penchant for diamond engagement rings among the higher echelons of European society.

With that stage set, the marketing genius of DeBeers was sure to follow. And, nowadays, it seems that engagements have become all about the diamond ring.

But fast forward a bit and then show me an announcement of a broken engagement. The next exclamation is inevitably: “Did she give back the ring?” (Apologies for falling into the typical gender trap.)

Did she? Should she? With some statistics estimating that a quarter of a million engagements do not end in marriage, this is a significant fiscal and sociological question with both legal and moral implications.

As with all things marital, the answer to what a court is likely to do when it comes to “who gets to keep the ring” depends on varying state laws (by which I do not mean to imply that the law is always as clear as a princess cut).

Typically, these cases are analyzed as to whether the intent was to give the ring as a gift, whether the ring was actually given as a gift, and whether the donee accepted the ring as a gift. But wait…there’s more. A conditional promise to marry is also attached. More to the point, the majority of states have taken the view that if the affianced does not perform on the promise to marry, then the ring must be returned as that token was itself the consideration for the promise to say “I do.”

But that analysis would be too simple. Some states – like Massachusetts – take fault into consideration and consider who broke off the engagement. After satisfying that inquiry, the one who broke off the engagement does not get the ring. While that might appear to be an elegantly simple resolution, anyone who knows human nature understands that the person who actually broke off the engagement may well have been provoked to do so, or, may have done so because their louse spouse-not-to-be was really at fault.

But, back to elegantly simple solutions. Consider Montana! That state takes an approach as clear as a gem. The engagement ring is deemed to be an unconditional gift that is kept by the recipient – despite whether the marriage ever happens and despite who pulled the plug on the engagement.

In case you are wondering, is the law more settled when it comes to wedding bands or engagement rings after the marriage? I think not. While some would strenuously argue that wedding rings are marital property subject to division in the event of divorce, others would counterpunch they are completed gifts because any preconditions attached to the gift have been met (i.e., the wedding itself sealed the deal).

Are there any escape clauses? A least two worth noting. First, if an engagement ring is given on a holiday or birthday, some say that the argument is strengthened that the ring was merely a completed gift irrespective of whether the marriage goes forward or not because the ring is less attached to the promise of marriage and relates more to the occasion of the special date on which it was given. So, let that be a cautionary tale for those who are contemplating a Valentine’s Day, Christmas, or New Year’s proposal. Second, if the engagement ring is a family heirloom, this should be a no-brainer dictating that it should be returned to the donor.

So, what’s the law about the propriety of who gets to keep the ring? Indeed, what’s fair in this facet of “all’s fair in love and war”?

Well, as all things in the law, the answer is what law students are taught on their first day of law school: “it depends.”

And, even at that, are we talking about human laws, or, underlying moral codes (as the latter cannot be legislated)?

Vicki L. Shemin, J.D., LICSW, ACSW, a divorce lawyer and clinical social worker, is a partner at Fields and Dennis LLP in Wellesley. She can be reached at 781.489.6776 or VShemin@FieldsDennis.com.

Attorney Jonathan E. Fields featured in Times of London on Prenuptial Agreements and Social Media

From the Times of London

Pre-nups now cover social media revenge

by Will Pavia

For years young people from genteel parts of Massachusetts have gone to see a lawyer before they embark on marriage.

“The kinds of people who come into the office probably came into offices 50 years ago,” Jonathan Fields, a family
lawyer in Wellesley, outside Boston, said of those who want prenuptial agreements. “They are 25, their parents have huge estates.”  Lately, however, clients of Fields and Dennis have arrived with new concerns, beyond those of protecting a family fortune. They want, for example, to protect their reputations on social media should matrimony end in acrimony. Other requests include whether frozen embryos can be used after divorce, binding statements on who owes what to which university, and who gets the dog.

“They don’t want the one person to say nasty things about the other person,” Mr Fields said of a generation weaned on social media. He tells his clients that this may be impossible to enforce, because of the free speech protections of the First Amendment.

But the request reflects one of a broad range of new concerns being written into prenuptial agreements. Some have attributed the greater use of prenuptials to a broader cohort of young people whose parents divorced. Jessica Marshall, a family lawyer in Chicago, has suggested that student debts and a tendency to marry later in life may also have caused couples to consider financial arrangements before tying the knot. In an article for The National Law Review, she said: “They would also like to ensure that debt is properly accounted for in a divorce.”

Attorney Jonathan E. Fields Quoted in Wall Street Journal

Attorney Jonathan E. Fields was quoted in today’s Wall Street Journal

Millennials Embrace Prenups—but Through a Very Different Lens Than in the Past

Millennials are using prenups to address new economic and social issues—including rising student debt, social-media use and embryo ownership

By Cheryl Winokur Munk
Jan. 21, 2021 1:00 pm ET

Millennials are often known to buck convention. That seems to be true even when it comes to prenuptial agreements.

In the past, prenups were most common among young adults from wealthy families or couples entering second or third marriages. Today, younger adults of all income levels are drafting them, not only to protect assets accumulated before and during marriage but to address societal realities that weren’t necessarily present or common years ago, such as a desire to keep finances separate, student debt, social-media use, embryo ownership and even pet care.

Experts point to the fact that many millennials are children of divorced parents and have had an intimate look at what can happen financially when a marriage dissolves. At the same time, the stigma or taboo that used to be associated with discussing money before marriage is slowly disappearing.

Social media

Jonathan Fields, a family-law attorney and divorce mediator with Fields and Dennis LLP in Wellesley, Mass., says he also is getting requests from younger clients to address social media in prenups to ensure that one spouse can’t write nasty things about the other in the event they break up. He says he tries to discourage such clauses because he’s concerned it could run into First Amendment issues, but if clients insist, he includes it using broad language related to not discussing each other negatively, or to their children, for example.

A typical clause, he says, would prohibit the dissemination—without prior written and/or electronic consent—of information that could disparage or harm the other or the other’s public image. This could cover all media, including photographs, video, blogging, texting, tweeting, tagging, and posting on any social-media site, service or platform, he says.

Read the full article 

Vicki L. Shemin, J.D., LICSW, ACSW receives the Avvo Clients’ Choice Award Badge for 2021

Vicki L. Shemin, J.D., LICSW, ACSW was presented with Avvo Clients’ Choice Award Badge for 2021. This award is given to attorneys whose outstanding legal services have resulted in highly satisfied clients. There’s nothing that an attorney can do to ask for a Clients’ Choice Award. Instead, Avvo makes the award based only on quality reviews from satisfied clients throughout the year.

 

WHAT YOUR DIVORCE LAWYER WANTS YOU TO KNOW BUT WOULD NEVER TELL YOU TO YOUR FACE – New Article by Attorney Vicki L. Shemin Published in Thrive Global

By Vicki L. Shemin, J.D., LICSW, ACSW

In this season of joy and good tidings, it is easy to overlook those families whose lives are forever changed because of divorce. The traditions of the holiday meal and of opening presents is replaced by bruising brawls about where the children will be spending their holiday time and which parent will “win” and which parent will “lose” Christmas Eve, Christmas Day, Winter vacation, and New Year’s Eve. Although these holidays are emblematic of the season, these fights replicate throughout the year in one way, shape, or form to birthdays, graduations, and even who gets to be on the soccer field.

I polled 7 of Boston’s top divorce lawyers and asked them a simple question: “What would you like to be able to say to your clients but never would”? Under promise of anonymity, here are their blunt and unadulterated answers.

·        “Unless you have a degree in psychology, I don’t want to hear that your spouse is a narcissistic sociopath with borderline personality disorder who gaslights you.”

·        “S/he’s moved on. It’s hard to see now, but you are going to move on. Stop being a jerk. And, really? You’re blaming me for your high legal fees? If you would stop being so irrationally and insanely ridiculous, and let me do my job properly, I could settle this for you in a week. Moreover, the judge disdains you and the court staff roll their eyes when they see you are on the docket and look at the size of your file. You do not have a hard case. You have a personality which makes everything impossible. Yeah – I get why s/he is divorcing you.”

·        “I was once naïve enough to take on a client who said, ‘Are you taking new clients?’ I said, ‘Yes, I am.’  She said, ‘Thank G-d, because the last 3 I spoke to said they weren’t taking new cases.’ Yeah….I learned my lesson. So, if a divorce lawyer tells you they’re not taking new clients, it’s more likely than not that they have detected something about your case, your history or your personality they either don’t like or don’t want to deal with – no matter how much you’re willing to pay them!”

·       A renowned Judge used to say, “Do you really hate your ex-spouse more than you love your children?” To which I would add, “Do you have any idea how much damage you are doing to your kids? Forget about exacting revenge, take the high road, and show your kids you are a decent human being underneath that seething rage.”

·       Here are my words of advice: (1) Figure out what matters most and don’t sweat the small stuff; (2) If you message nasty content to your children about their other parent, you will be inflicting pain on them and it will boomerang on you in your relationship with them; and (3) If you want to reduce legal fees, consolidate and make concise your communications with your lawyer.

·        “I can only go so far in representing you. Your position is totally unreasonable. In fact, not only will the court see your position as totally unreasonable, I think it’s time for you to find another lawyer if you want to continue being so unreasonable.”

·   “Most seasoned divorce lawyers can predict the likely final outcome of a divorce case, within reason, after the initial client consultation.  Unfortunately, it is often a client’s lack of complete candor about the “warts” of their case during the initial consultation, or the client’s unwillingness to follow the guidance and specific recommendations of their lawyer, that alters these initial predictions.”

There is a doctrine in the law known as res ipsa loquitor – the thing speaks for itself.

Enough said.

Vicki L. Shemin, J.D., LICSW, ACSW, a divorce lawyer and clinical social worker, is a partner at Fields and Dennis LLP in Wellesley.  She can be reached at 781.489.6776 or vshemin@fdcattorneys.com. 

Attorney Jonathan Fields Quoted in Massachusetts Lawyers Weekly

Snap Judgments: Lawyers predict issue that will dominate legal landscape in 2021

By: Kris Olson December 31, 2020 (From Massachusetts Lawyers Weekly) 

Q. Prediction time: What issue on the horizon will dominate the legal landscape in 2021?

 

“Five hours of time for a five-minute hearing has never seemed so wasteful. With the experience of remote hearings, will the courts realize that, in 2021 and beyond, we cannot go back to the old way of doing things?”
Jonathan E. Fields
Fields & Dennis, Wellesley

 

“In 2021, the COVID-19 vaccine’s impact on the workforce will dominate the legal landscape. Employers will grapple with vaccine resistance, some due to disability, some due to religious beliefs, some due to fear, and some due to deep-seated distrust of governmental vaccination programs ( i.e., the Tuskegee Study). Health officials and employers alike must establish trust through compliance with federal and state public health initiatives and anti-discrimination guidelines.”
Denise I. Murphy, president
Massachusetts Bar Association

 

“Race and criminal justice. Will the police reform legislation emerging on Beacon Hill actually deliver on the promise to make police officers and departments accountable to the public — especially in communities of color? And will the Legislature, the courts and the legal profession step up to meet the challenge presented by the Harvard Law School study, commissioned by Chief Justice Gants, that so vividly documented profound racial inequality in our criminal justice system?”
Martin F. Murphy, president
Boston Bar Association

 

“How the legal system conducts jury trials and deals with the overall backlog are going to be the most pressing legal questions in the coming year. There are hundreds of pending cases, and figuring out how we are going to safely and constitutionally handle them in a post-COVID society is something we are all focused on. We need to make sure that those who have the least are not left behind as we try to rebuild our legal system.”
Anthony J. Benedetti
Committee for Public Counsel Services

 

“Evictions and foreclosures, unless there is an extended moratorium. In anticipation, I’m rewriting §10:2 ‘Foreclosure Defense’ with a subsection on eviction defense, for 28 Mass. Practice: Real Estate Law, of which I’m the current author. As in the 1930s’ Great Depression, we may see mass civil disobedience to block foreclosure auctions and evictions, bankruptcies of residential and commercial landlords, and bank failures. Hunger and desperation may lead to increased crime, especially theft of food.”
Michael Pill
Green, Miles, Lipton, Northampton

 

“Employers will likely face complex and vexing issues on whether to require employees to take the COVID vaccines. So far there are not government requirements, but that may change as the vaccines prove effective. Presently, the issue of mandatory vaccinations raises the issue of ADA strictures as well as Title VII religious issues. The EEOC just issued guidelines yesterday, but not requirements. Stay tuned!”
Andrew P. Botti
McLane Middleton, Woburn

 

“Immigration law dominates the legal landscape in 2021. The incoming administration will be under significant pressure to undo the most harmful policies of the Trump administration. Changes in the immigration courts, asylum laws, green card applications, as well as restoration of DACA and Temporary Protected Status will occupy much of the administration’s first days. The Biden administration faces a gargantuan task, and because of that immigration law will be a continuing hot topic in 2021.”
Susan B. Church
Demissie & Church, Cambridge

 

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