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I left my husband in 1997 and we have been separated since. Do I still have to file for divorce or after so many years?
You can file for divorce in Massachusetts at any time. The fact that 14 years has elapsed since the separation does not change that. The primary issues that need consideration are child support, alimony and division of the marital estate, which simply means a division of joint assets and liabilities. If you had children, then child support must be considered, if they are still minors. Child support must be paid by the non-custodial spouse until the children are emanicipated, which is defined in Massachusetts as when the children reach the age of 18 and are out of the house and working, or after they have completed a full-time, accredited college and graduated, or reached the age of 23, whichever happens first. A claim for child support is customarily made by the parent who has custody of the child when the parents separate. Payment can be made by agreement of the parties, or by an order of the judge in the Probate and Family Court. A claim for child support, however, can also be made by the custodial parent, retroactive to the date of the child’s birth, if the non-custodial parent has not paid child support, irrespective of how much time has passed from the date of separation. The courts have held that the obligation to pay child support continues until the child have reached the age of emancipation and the failure to pay it may be a crime.
Many states, including Massachusetts, now consider the reality that in many households, both the Mother and Father work. Therefore, the Child Support Guidlines were changed in 2009 to reflect the changing role of Mother and Father in the family so that the courts ma now consider the income of both parents and not just the Father’s income. The new Child Support Guidlines also permit deviations from the norm, depending upon the individual circumstances of each family. Consequently, an attorney may argue that the Guidlines should be adjusted upward, or downward, depending upon who the attorney represents and the facts of each case.
Unilike Child Support, the Mother or Father is not able to receive Alimony, until a Complaint for Alimony, or Complaint of Modification is filed in the court. It is not retroactive. Alimony may also be addressed by the parties in the Separation Agreement, which becomes part of the Divorce Judgment. The purpose of Alimony is to provide spousal support, In other words, it is not intended as support for the minor children. Although the courts can look at a material change of circumstances, such as retirement, loss of a job, as a basis to modify Alimony, Alimony can continue indefinitely under current law.
Alimony, like Child Support, however, is undergoing substantial change, as the family changes in our society. Where both Father and Mother often work, legislative change is afoot to modify alimony both as to its duration and the amount. The Massachusetts Legislature and the bar associations are considering proposals that would alter Alimony to better reflect the realities of today. Each situation is based on its own set of facts, such as the length of the marriage, who contibuted to the marital estate and many other factors.
Child support is not tax deductable. Alimony, however, is tax deductable to the party who pays it and is income to the party that receives it.
Whenever minor children are involved, the Probate Court is concerned with what is in their best interests, notwithstanding the differences between their Mother and Father. Therefore, a parenting plan, which addresses visitation issues, must be tailored to work for the children and their emotional needs.
Division of the marital estate involves decisions as to what to do about the assets and liabilities of the family.
The biggest asset is usually the house. The fair market value of the house has to be determined which can be done by a real estate appraiser, or informally by a real estate broker who is familiar with the community where the property is located. If there is a mortgage, that has to be subtracted from the fair market value in order to determine how much equity is in the property. In these difficult financial times, sometimes the amount of debt, together, with the loss of property value, places the property in a negative value. When this happens, strategic decisions have to be made with the bank that is holding the mortgage, and other creditors.
If the children are still minors, the Mother or Father will want to remain in the marital home until the children graduate high school or college and become emancipated. Then decisions must be made as to who is responsible for maintaining the house and whether Child Support, or Alimony, as the case may be, will be enough to cover the needs of the family, home and other obligations.
If the children are planning to go to college, it is important to address the contribution that each parent will make to their children’s education, whether by the creation of a 529 Plan, or other mechanism to cover this future expense.
Division of the marital estate also requires an analysis of other issues, such as who will maintain the health insurance, how much life insurance will be needed to cover the family’s needs, should Mother or Father pass away. Retirement accounts, such as 401K’s, IRA’s, Defined Contribution Plans and Non-contribution Plans are also part of the marital estate. If there has been a family business, then a business evaluation of the assets, liabilities and tax consequences need to be considered. There will often be competing evaluations of what a business is worth, depending upon which spouse intends to retain it. What is significant is not simply looking at the asset but looking at the income stream that business may generate in the future.
The division of martial assets requires careful consideration of many factors and an attorney will often employ other professionals, such as an certified public accountant, business evaluators, who are often accountants by training and tax consultants.
In addition to the factors above, the Probate Court is also concerned about the conduct of the parties during the marriage and the period after the Complaint for Divorce has been filed but before the Divorce has been finalized. Conduct covers a wide spectrum of behavior from how the Mother and Father have treated each other and their children. How have those behaviors contributed the break-up of the marriage and what is the collateral damage that has occurred to the family emotionally and materially as a result of that.
Attorney David Rubin is a Framingham, MA divorce lawyer and provides family law and divorce representation to clients throughout the Greater Boston region, including communities such as Boston, Boston MetroWest, Framingham, Dedham, Marlborough, Natick, Needham, Newton, Waltham and Worcester.
David L. Rubin, Attorney at Law
Framingham Divorce Lawyer
929 Worcester Road
Framingham, MA 01701
Telephone: (508) 875-9797
Boston: (617) 451-0707
Fax: (508) 820-1560
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