Why the change? Family structures are moving away from having a “stay at home” parent, most likely as a result of the economy and the changing needs of society. Most families are not able to make ends meet with one income, thus forcing both parents to work outside the home. The end result at home is that the household duties and the parenting are more evenly shared by the parents.

How does this factor into divorce? If the time comes for separation or divorce, and there are now two households to support, the need for two incomes becomes even greater. The sharing of parenting also becomes more important, since it cannot be expected that one of the parents is able to both work and take full responsibility for the parenting duties. This could result in the parents sharing physical custody of the children.

If the children were being co-parented during the marriage, shared physical custody is entirely appropriate at divorce. There are many things that the parents must do in order to make this arrangement work for both them and the children. Most importantly, each parent must be able to communicate with the other to ensure the best possible environment for the children. If the parties agree and can make this arrangement work for the children, the Court will certainly accept it.

You can seek shared physical custody if your spouse does not agree, provided that your situation warrants a shared physical custody arrangement. Recently, I represented a husband, whose wife did not want to share physical custody of the minor children. Theirs was a marriage where they equally shared parenting duties and thus, we argued that shared physical custody was appropriate and in fact, an arrangement with which these children were already accustomed. The Court agreed and granted shared physical custody to the parents.

Fathers contact me every day to discuss their divorce matter, most assuming that they will not see much of their children in the future. Mothers contact me every day too, worrying that there is no way they can work to support their household and still manage to give their children the attention that they require. A shared physical custody arrangement may be just the solution to either problem, but certainly, something worth looking into.

A “joint petition” is filed when the parties agree on how to resolve all of the issues surrounding their separation. This includes grounds for divorce, division of assets, custody & visitation, health insurance, retirement plans, alimony, child support, etc. The parties will be required to file a petition for divorce, several procedural documents and a settlement agreement that documents how they will resolve each and every issue. After all documents are drafted, negotiated and signed, the parties file the petition with the Court, along with all the corresponding documents, and request that a date be assigned for an uncontested hearing. At that hearing, the parties appear for testimony and review of the case by the Judge.

If there is any conflict between the parties related to the divorce action (ie they cannot agree on division of assets, one party does not want to divorce, etc.), one party can initiate a case by filing a “complaint for divorce.” If there are immediate issues, such as support or custody and visitation, the plaintiff may also choose to file motions at this time. The Court will then issue a summons that the plaintiff must serve to the defendant, along with a copy of the complaint. The defendant then has a certain time period in which s/he must file an answer. From there, the case proceeds to discovery, which is a process by which the parties share information. The parties then have a four way hearing to discuss the issues in the case and explore settlement. If the matter cannot be settled, the parties next attend a pre-trial conference at the Court and prepare for trial. Many times, cases are resolved with the Court’s assistance at these hearings. While this is a very simplified version of the process, it gives you a general idea of how a case proceeds when a complaint for divorce is filed. There are many issues that may arise along the way that may require negotiation, settlement or decision by the Court.

A breakdown of a marriage or a separation of a family is often a devastating experience. There are many things to consider and difficult decisions to be made. Frequently, a party to a divorce action, or a potential divorce action, has questions about the applicable law, the process, the decisions, the cost, support, custody, visitation, Court appearances and the future. In an already emotional situation, you will best be served by an experienced attorney that will take you through the process step by step and give you the guidance and understanding that you need to consider every issue and make informed decisions about your future.

This Act aims to define, clarify and guide the Courts, and the litigants, regarding certain aspects of alimony. Amongst other things, the Act sets term limits, provides limitation of alimony amount, defines gross income, guides between the interplay of child support and alimony, reduces support for payments of health and/or life insurance, excludes second job or overtime income for modification of alimony and gives a standard for alimony extensions and for termination of alimony upon remarriage of the recipient.

The bill was passed in July by the Senate and last week, by the House. It was signed by Governor Patrick on September 26, 2011. This effective date of this Act is March 1, 2012.

You can read the proposed bill here: http://www.malegislature.gov/Bills/187/Senate/S00665

As always, with new legislation, new case law will be created in the future. In creating this bill, it is almost impossible to define every circumstance. Aspects that are not clearly defined, completely addressed or adequately described will require cleverly supported arguments to the Court for decisions to be made. This legislation will leave room for creative lawyering to represent your position and best interests in the up and coming future.

For the next few weeks, I will discuss certain aspects of the bill and the changes that it brings. If you have certain areas that you would like to hear about, I invite you to email me your request to learn more.

If you seek separate support, you are telling the Court that, for some reason, your spouse has deserted you and/or is not supporting you (and has no basis for doing so). At the time of filing, you may be living with your spouse, or not, but you have cause to live separately. You may also ask the Court for certain orders regarding health insurance, division of assets and freedom of restraint. There is neither a legal separation of the parties nor a termination of the marriage.

To file for separate support, you must show one of the following:

1) That the Defendant is not providing suitable support, without justifiable cause;
2) That you have been deserted by the defendant;
3) That you are actually living apart from the defendant for a justifiable cause; or
4) That you have justifiable cause for living separate (yet may no, in fact, be living separately).

As your remedy, on a temporary or permanent basis, you may ask the Court for one or all of the following:

1) Order that your living apart from the defendant is for a justifiable cause;
2) Order payment alimony with appropriate health insurance provisions;
3) Order child support with appropriate health insurance provisions;
4) Order custody of the children and visitation;
5) Order a conveyance of real estate;
6) Order a separation of the assets; and
7) All other relief that is necessary in your case.

If you file for a Divorce, you are telling the Court that, for some reason, you no longer want to be married to your spouse. You often ask the Court for similar orders and remedies as in separate support action, perhaps first on a temporary basis but certainly on a permanent basis. However, in a divorce action, ultimately, every asset is divided, every issue is resolved and the marriage is legally terminated.

Often clients are confused as to whether or not they ought to file for separate support or file for divorce. At times, filing for separate support can be an extra step and wasteful in time, energy and money for the parties. You may very well be able to file a complaint for divorce, never having first filed the complaint for separate support, and accomplish your goals.

It is also important to know that you may seek separate divorce and later move to amend the matter to obtain a divorce. However, you do not necessarily have to do this. It is a choice that you make given the details of your matter.

Knowing your options is the first step to making the right choices. Every family situation is different. Every individual has different needs. Make sure that the option you choose is the one that suits you best. Consult with us to determine what is best for you.

Whether something is a marital asset is an important factor because it affects division of the assets during a divorce proceeding. Generally, a marital asset will be divided by the parties upon divorce. An individual asset will not. Therefore, this is a very important determination in a divorce proceeding particularly where there is a large asset or an asset that can be argued to be marital or individual.

Generally, a marital asset is one that has been earned, purchased, grown or received during the marriage. It does not matter in whose name the asset is held. More important is when it was received, how it was nurtured and if it was an asset that was woven into the fabric of the marriage.

For some assets, this decision is rather clear. For example, if you purchased a home just after marriage and paid the mortgage and expenses with joint funds, then this home is a marital asset. Presumably, you and your spouse would divide the equity in the home upon divorce.

For other assets, this decision is not clear at all. There may be an asset that was acquired prior to the marriage but was increased during the course of the marriage. For example, a wife may have had a retirement plan that she started prior to marriage but continued to contribute to during the marriage. There may be an asset that was acquired during the marriage but held entirely apart from the marriage. For example, perhaps the husband received an inheritance but sheltered it from his wife. For these assets, you must argue to the Court why you feel the asset is marital, or individual, and convince the Court using the facts, circumstances and current case law and your suggested division of this asset.

Since there is no hard and fast rule or formula to determine whether something is a marital asset, you are best advised to speak with an attorney about your assets to determine one by one which assets are marital and which are individual. From there, you can make decisions about the distribution of these assets and if need be, make arguments to the Court. For assets that can be argued as marital or individual, an attorney’s argument may help the Court to determine whether this asset, or a portion of it, is deemed a marital asset.

Distribution of assets is a very important step of your divorce. It determines with what assets you leave the marriage to begin your new life. Take this step very seriously and fight for those assets that are yours.