Think you can hide from your spouse by not having an address where you can be served with divorce papers - either at home or at work? A New York judge does not think so. Recently, in a Baidoo v Blood-Dzraku case, he ruled that divorce papers can be served by sending a personal message on Facebook if no other, more conventional option is available:
Much is written about divorce law. This is not surprising. Unfortunately, divorce is a common occurrence in our society. If you Google “Massachusetts Divorce”, you will receive thousands upon thousands of links. Most of the links will point you to some forum where a self proclaimed expert will explain some aspect of divorce to the reader. All too often, the information contained in such publications will be wrong or misleading. In this brief overview, we will attempt to highlight some common factual fallacies.
1) Fact or Fiction? We have been living as a couple for 7 years in Massachusetts but have never formalized our marital status with the Commonwealth. Because we lived together as a married couple for a statutory period, we are married in the eyes of the law. Fiction. Massachusetts does not recognize Common Law Marriage.
2) Fact or Fiction? If I am not married in the eyes of the law, I cannot get any alimony or separation of assets. Fiction. Family and Probate Courts are courts of equity. Equity deals with fairness. A qualified attorney may be able to obtain a fair and equitable outcome for you vis-à-vis your (former) significant other, be it a partner, a boyfriend or a girlfriend, even if you two were not married.
3) Fact or Fiction? My spouse and I decided to part ways. We agree on everything. Therefore, we do not need to go to court. Fiction. Spouses may separate their assets and their home by themselves. However, a mere separation does not constitute a divorce. Marriage is a status which has been granted and recognized by the Commonwealth. What Commonwealth creates can only be dissolved by the Commonwealth. In Massachusetts, marriage can only be dissolved by the Probate and Family Court.
4) Fact or Fiction? I have no assets to divide with my spouse, so I do not need an attorney to go through divorce. Fiction. Divorce, just like marriage, has future implications. There are many issues to resolve aside from separation of assets. Issues vary by individual circumstances, but typically include Alimony, Child Support, Custody of Children, Visitation Rights, and Custody of “special property interests”( Special property interest may exist in biological specimens such as cryo preserved semen. Special Property Interest may also include burial plots)
5) Fact of Fiction? If I represent myself and make a mistake, I can always correct it by a process called modification. Fiction. Modification is only available when a petitioner is able to demonstrate that there has been a material change in circumstances from the time divorce has been granted. A mistake of a pro se litigant alone will not support a modification.
6) Fact or Fiction? I have a prenuptial agreement. If I later get divorced, the judge hearing my divorce is bound by the provisions of the agreement. Fiction. A Probate and Family Court judge may unilaterally strike out a provision or the entire agreement if she determines that it is not fair and reasonable.
7) Fact or Fiction? My spouse and I can agree in a separation agreement that there will be no alimony. Fact in most circumstances. However, the judge will not allow one spouse to become a financial burden on the state if the other spouse is able to pay support.
8) Fact or Fiction? I received inheritance from my rich uncle. This property will not be divided. Fiction. In Massachusetts, divisible property is comprised of property whenever and however acquired. It may include the inheritance from your uncle, particularly so if your spouse has helped to make that inheritance grow in value.
9) Fact or Fiction? On May 1st 2011, I had a hearing in court where the judge granted me a divorce. On June 1st, 2011 I can re-marry. Fiction. Polygamy is not allowed in our Commonwealth. Grant of divorce does not become final until after 90 days have passed from the date the Judgment of Divorce had been issued.
10) Fact or Fiction? I can agree with my spouse not to pay child support. Fiction. The right to child support belongs to the child, not to the parents. The state will enforce the right to child support even if the spouse will not.
11) Fact or Fiction? I can agree with my spouse on what the amount of child support will be. Partially Fiction. Massachusetts has promulgated child support guidelines which set minimum payments based on financial data. A parent can agree to pay more.
12) Fact or Fiction? If I represent myself in a divorce case, a judge will tell me if the Separation Agreement is not fair. Depends on the judge. The judge will ask each spouse if they understand and agree with terms of the Separation Agreement. There is no affirmative duty on the part of the judge to question fairness unless an agreement is so one sided that it shocks the consciousness or violates some statutory provision.
13) Fact or Fiction? Our marital property will be divided 50/50 upon divorce. Fiction. Massachusetts is among a minority of states that still use the equitable division of assets method. Fair and equitable does not mean equal. There are many factors the judge will look at in determining how the assets will be split.
14) Fact or Fiction? There is no difference between child support and alimony payments. These are just two different labels for the same thing. Fiction. Child support will always have to be paid if the divorcing spouses have a minor child or children while alimony will not. There are many situations where neither of the divorcing spouses will get alimony. Furthermore, Child Support payments are tax deductible while alimony is not.
15) Fact or Fiction? We have been married for 2 years, so my spouse will be eligible for alimony. Fiction. See Answer to Question 14 right above. Judges are reluctant to order alimony payments in a short term marriage. If the marriage has lasted only a few short years, judges will typically place the parties in positions they were prior to the marriage.
In the following post we will talk about child custody.
The preceeding was a superficial overview of most common myths in divorce law. This writing is for general informational purposes only. It was designed to give readers some very basic understanding about issues that come up in divorce law and is not a substitute for a qualified legal advice. A divorce is a complicated process riddled with many hurdles. Don’t go through it alone, seek legal representation. If you have any questions or require further assistance, please call the Law Office of Ariana Kushak at 617-290-5083 or e-mail firstname.lastname@example.org.
Imagine the following scenario: you and your spouse have been married for a certain amount of time – it probably doesn’t matter for how long or how little time – and somewhere down the line your financial situation changes. For example, you start earning significantly more. Without any agreement to the contrary, your spouse would have the claim to the additional money as it was received by a married person – you – during marriage – and would be considered ‘’marital property to be divided equitably in the event of a divorce.
However, recently, in a case named Ansin v. Craven – Ansin, Massachusetts Supreme Judicial Court, via a decision authored by a departing Chief Justice Margaret Marshall, announced that ‘’a marital relationship need not vitiate contractual rights between the parties.’’ 457 Mass. 283. (July 16, 2010). In other words, parties can be married and still have a right to contract with each other just like any unrelated parties do.
One might argue that a marital agreement is different from your typical contract negotiated at arm’s length because of a highly personal, confidential and intimate nature of a relationship between the contracting parties. This is exactly the kind of argument the wife in the Ansin case made. She argued that marital agreements, by their very nature, are ‘’innately coercive’’, ‘’usually’’ arise when a marriage is already failing and may ‘’encourage’’ divorce (quoting the text of the decision).
For example, it is quite possible to imagine one spouse, usually the one who is the primary source of wealth in the family, using the marital agreement as a tactic to deprive the other spouse of much of the marital property in the event of a divorce. The ‘’wealthy’’ spouse may say something like, ‘’Here is an agreement my lawyer drafted. If you want to stay married, you better sign it.’’ The court, while agreeing in principle that circumstances surrounding marital contracts certainly provide ample opportunities for threat, coercion and duress, stated that this can be avoided by having a Probate and Family Court judge review and scrutinize each agreement.
With these unorthodox options, splitting up — and dealing with divorce — doesn't have to be a total downer.
By Elise Nersesian-Solé for Marie-Claire
Feeling a bit blue after separating from a spouse? These unusual post-divorce rituals may help you ease the pain — at least temporarily.
Divorce registries: A store in the U.K. called Debenhams offers "divorce registries," where pre-selected gifts (dishes, linens, flat-screen televisions) are sold and delivered to the newly single.
Divorce ceremonies: In Tokyo, unhappy couples flock to the Divorce Mansion (a small rented room in a secret location) to smash their wedding rings with a mallet in front of family and friends.
Fireworks displays: The Great Northern Firework Company in England will set off a theatrical display of fireworks for just-divorced folks spelling out messages like "Free at last!" and "Just divorced!"
Networking events: "Life After Divorce" is a $40 NYC-based event for women in the throes of a divorce where they drink cocktails named "Alimony" and "Settlement" and mingle with matchmakers, nutritionists, psychics, and divorce lawyers