The interplay between inheritance, trusts, and divorce raises a series of issues every estate planning and family law attorney must be prepared to address. What steps should estate planning attorneys take to protect assets prior to or in anticipation of divorce? What is the procedure for courts to value a trust interest for purposes of equitable distribution and/or support payments? What are the recent legal decisions that influence practices related to inheritance, trusts interests, or divorce? Attend this online program to hear expert faculty answer these questions and others that arise when these topics collide.
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@.
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 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.
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.
Attorney Jonathan Fields will be speaking at MCLE about Inheritance, Trusts & Divorce on 09/23/2020. Learn more about the program here http://www.mcle.org/product/catalog/code/2210108P01. We hope you’ll join him!
The interplay between inheritance, trusts, and divorce raises a series of issues every estate planning and family law attorney must be prepared to address. What steps should estate planning attorneys take to protect assets prior to or in anticipation of divorce? What is the procedure for courts to value a trust interest for purposes of equitable distribution and/or support payments? What are the recent legal decisions that influence practices related to inheritance, trusts interests, or divorce? Attend this program to hear expert faculty answer these questions and others that arise when these topics collide.
Compassion and Guidance Through the Attorney’s Eyes with Guest, Andrea E. DeLaney, Esq. Andrea specializes in family law and divorce, including child custody, child support, paternity, alimony and asset division. Together with Host, Cece Shatz on Going Solo with Cece Show, they chatted about the asset division process and various legal steps in divorce. WGSN-DB Going Solo Network, Radio, TV & Podcasts (www.goingsolomedia.com)
As most of you know, the probate and family law courts in Massachusetts are closed due to the COVID-19 pandemic. How can you resolve your matter during this crisis.
1. If its an emergency, your matter may be able to be heard telephonically. But those are rare, as I understand it. What you and I think is an emergency may not be one for the court. Domestic Violence Restraining orders may qualify as an emergency. A financial issue, including a modification of support based on a loss of job, may not.
2. You should consider mediation. The mediators here at Fields and Dennis can help you resolve your dispute using remote videoconferencing.
3. Since mediation isn’t binding, you may want to consider submitting a matter to arbitration which is binding. With arbitration, the parties can select an arbitrator, present the case to him/her by submitting papers and remote videoconferencing. I have acted as arbitrator and am certified by the American Academy of Matrimonial Lawyers.
4. With both mediation and arbitration, the parties decide what the issues are: maybe it’s the whole case, or maybe its just parenting time during the current pandemic. You might just need mediation or arbitration as a stopgap to get you through til the courts are fully operational again.
5. Whatever your needs, please feel free to give us a call at Fields and Dennis. Our number is 781.489.6776.
Who pays back student loans after divorce depends on your states’ laws. Most likely if you took out the student loans prior to marriage and they are in your name you are responsible for paying. Student loans that you and your spouse took out while you are married can get confusing.