Pre-Divorce Planning

• Preventing Divorce
• Do You Need an Attorney?
• Private Investigators
• Divorce Mistakes: The Top-10 List

Preventing Divorce

The decision to get divorced is not always mutual.  Although Massachusetts allows one party to make the decision to get divorced even if it is against the wishes of the other party, you may be able to convince your spouse to reconsider.  If you are faced with a divorce complaint, here are some steps you might take to slow down the divorce:

Once you receive the complaint for divorce, the first thing you need to do is hire an attorney.  Don’t expect that you can retain the services of the attorney you and your spouse have used in the past.  In Massachusetts, this would pose a conflict of interest.  As a rule of thumb, many interview at least three attorneys and ultimately retain the one with whom they feel most comfortable.

Once you retain counsel, tell him or her that you do not want this divorce.  They can help you decide on a plan.

In Massachusetts, you have 20 days from the date of service to respond to the Complaint for Divorce.  You will want your attorney to help you figure out the “date of service.”  If you do not respond within that period, you will be declared in default and will have no standing to contest the divorce unless the default is vacated.

There are some other tactics that can begin making a difference if you want to have a discussion with your spouse and make an attempt to get them to reconsider their decision to divorce:

1.  Do not try to immediately change your spouse’s feelings.  Instead, try to make them understand what it is they love about you.  Almost always people simply forget why they are in love and need to be reminded.

2.  Figure out what it is your spouse wants or needs that they aren’t getting.  You can’t win your spouse’s love without knowing what you are up against.  A plan with set goals is essential.

3.  When your spouse provides feedback or makes a remark, never act defensively.  Instead, absorb it and make an attempt to learn from it. 

4.  Don’t label your spouse’s actions or statements.  Comments like, “That doesn’t make any sense” or “Why do I have to hear about this again?” is nothing more than another form of name-calling.

5.  Master the art of using “I” statements to defuse conflict.

If your attempt to slow down, or even rethink the complaint is unsuccessful…or, if you spot any of these 10 Divorce Danger Signs, it might be time for you to face the reality that you will likely be getting a divorce.

Divorce Danger Signs

If it becomes clear an imminent divorce is on the horizon, do yourself a favor and understand this:

The divorce process doesn’t begin upon the first visit to a lawyer’s office.  It usually begins in the early years of a marriage.  When one party is the caretaker of the relationship and there isn’t enough closeness or communication, one will pursue closeness.  If their spouse doesn’t respond, they usually complain about other things such as money, not about the lack of intimacy.  Think about it:  one spouse never becomes closer to another as a result of their nagging!  What results is usually that the closeness one spouse wants is never realized.

At some point, the spouse realizes that nagging is nonproductive and they give up.  Years go by where they aren’t pursuing closeness and they aren’t even nagging.  Their spouse – who now has no clue what’s going on – goes about their business, lulled into the status quo.  Meanwhile, one spouse decides for themselves that they are leaving and spends time developing an escape plan.  It’s different for each person, but a typical plan is something like this:  “When the youngest child is off to college, I’m out of here!”

More time goes by, and one day the spouse, according to plan, files for divorce.  Their partner – either the husband or the wife – is shocked, most of all because the reason for the divorce usually is described as “growing apart.”  Although the one who initiates the change thinks they’ve been verbalizing their unhappiness for years, the announcement that they want a divorce, or are actually filing for one, is the first wake-up call most spouses hear to preserve their marriage.

The sad part is, by this point, the lonely and emotionally-depleted initiator can’t or won’t make any effort to work out their problems.  They want out on the first occasion in the history of the marriage when they have their spouse’s attention.

The “Last Resort” Might Work – But Is It a Good Idea?

If your spouse is on the way out, there’s one technique that you think might save your marriage.  A famous author, Michelle Warner-Davis explains this final chance to save your marriage:

The biggest problem to overcome is that when your spouse is on their way out of your marriage, and you want to hold on to the relationship – when you feel something slipping through your fingers – your pursuit gets intense.  You may get on a guilt trip, order flowers, buy little presents, or even do “things” you wouldn’t normally do.  One workaholic husband once professed his love on a billboard. 

What happens is that the very things you do to solve the problem become the problem.  When you continue to do what is not working, you make it worse.  The more you see your spouse withdraw, the more you may try to do.  The more you pursue them, the more they withdraw.  If they had any doubts when they began the process of leaving, your pursuit is usually counterproductive: instead of allowing them to get in touch with their feelings about ending the marriage, you alienate them further. They may ignore your efforts because all they may be able to focus on is their contempt for you.  If you want to save the marriage, you have to use a different approach than this or you will push them out the door.  Stop pursuing.  Stop the flowers, stop the love notes.  Try a 180-degree turn.

Don’t ask or pursue them for progress reports or status checks on the relationship.  All the talk about the future has to end.  All they will do is talk about their feelings about the past.  Give them the opportunity to collect neutral or positive experiences so next time you talk they may have something positive to say.  Let them feel that you are moving forward with your life.  Give your spouse the opportunity to get in touch with what their life will be like after you.  If you come off desperate and clingy, you won’t seem attractive.  Get a life and show them you will be okay no matter what, and watch – they may be come more interested.  It takes time, but it works. 

Sometimes miracles do happen.  Sometimes, however, it’s too late, but here’s a redeeming thought:  even if you can’t save the marriage, these tactics will still help you restore your self-esteem.  This will help you get your feet back on the ground no matter how things end up.  You will – one way or the other – move on to the next stage in your life.

When you’ve given it your all, if you still want to pursue a divorce, contact us.

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Do You Need an Attorney?

If you are torn between taking the pro se route (that means representing yourself) or hiring an attorney, we say hire a lawyer – nine times out of ten – but there are exceptions.  In Massachusetts, you can get a divorce without a lawyer.  If you choose to go this route, be aware that handling a divorce without a lawyer requires the existence of certain key emotional and legal considerations.  You can consider not using a lawyer if:

• You and your spouse have equal emotional power and stability in the relationship
• You both will (and do) stand up for yourselves and your rights
• You both have a track record of being fair and honest
• There are no complications (children, property, etc.) involved
• Both of you agree on every issue

If any of the points above sound like you, congratulate yourself and consider saving attorneys fees…there are several do-it-yourself books to assist you.  Most Probate and Family Courts even have materials helping you understand how to go it alone.  If the list doesn’t describe your situation, contact us or hire an attorney.

The idea is not that you should just hire a lawyer and turn everything over to them.  Instead, you must stay in control.  Hire a lawyer for what you need the lawyer to do (like you would a coach)…an accountant for what you need the accountant to do, a fitness coach to do what you need that coach to do, and so on.

Whether you are going to retain a lawyer to represent you or just use him or her as a coach, there are some questions you will probably want to ask.  These will give you a good idea of both the fit between you and the approach that lawyer takes to their law practice.

The lay person attempting to resolve their own family law matter, or even being represented by counsel who does not practice extensively in the family law field, risks an outcome that is either inadequate or incomplete, or both.  The considerations and consequences of decisions involving property, support, custody and visitation can be far reaching and complex.

As an example, the wording of a Court Order or settlement agreement is prime territory for the applications of the law of unintended consequences, which may not surface until years later.  Here are some examples of mistakes made by people who took the do-it-yourself route:

• Income taxes:  If you do not understand the tax consequences of the transfer of certain property, such as a house, you may be stuck with a large tax bill.

• Forgotten and missed assets:  If you don’t understand what constitutes inventory of the marital estate, some property may be mistakenly transferred, such as inherited property that has been kept in one spouse’s name.

• Pensions.  In many cases, the retirement accounts are the most valuable marital asset, so mistakes in this area can be costly.  Some do not fully understand how to value what is to be divided; others fail to understand the consequences of an improperly divided account.

• The settlement agreement.  Drafting a comprehensive settlement agreement can be a real challenge.  For example, if you are working on a parenting schedule, it’s easy to be vague (thus unprotected) in your holiday visitation.  Others may completely spell out who – and how – pick-up and drop offs are to be handled.  One of the advantages of using our Boston Divorce Lawyers is the razor-sharp drafting skills they use in preparing the must-have clauses in your parenting plans and separation agreements.

• Post-Decree matters.  Most people don’t know how to transfer real estate.  Others don’t know the difference between alimony merging – or surviving – the Judgment for Divorce.

Sometimes you absolutely cannot afford to retain an attorney.  If this is the case, it is generally wise to contact and merely get a consultation with one.  You may have to borrow some money, but it is worth it to get some legal advice to learn your rights.  In once case, a client came to our office and – within two hours – we increased the value of the marital estate by $180,000 by assuring her that gifts and bonuses her husband received from work were certainly going to be considered part of the estate.  Considering the Judge apportioned the estate on a 55/45 percent basis (favoring the wife), the mere $700 in legal fees from that meeting alone translated into close to $100,000 for the client!  Finally, always remember if you do not have access to any funds but your spouse has money, a lawyer may be willing to go to court and request attorney’s fees from the other side.

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Private Investigators

There is no trust more important than the trust that cements a marriage.  When one party to the relationship suspects that the other party has broken that trust, the uncertainty can be devastating.  Suspicion alone can sometimes destroy a relationship.

More often that not, of course, suspicions tend to be valid.  Statistics say that 85 percent of women who have a hunch that their lover is cheating are correct and 50 percent of men are similarly correct.  If you have suspicions, warnings or signals of infidelity by your spouse or partner, consider some of the danger signs.  Have you noticed:

• Sudden increase in time away from the home
• Decreased sexual interest with you
• Distraction and daydreaming
• Cell phone calls from you are no longer returned in a timely fashion
• All of the sudden your spouse goes to another room to talk or to use the computer
• You are now asked about your schedule and plans more often
• Mileage on their car or truck is higher, yet they report short drives
• Unexplained charges on bank statements or credit card bills
• A new habit of deleting e-mail messages
• Suspicious voice mail messages, unfamiliar numbers stored in their cell phone, etc.

Parties to a divorce sometimes decide to hire a private investigator to document
marital conduct. Investigators are not generally used for custody disputes, however.  To be relevant to custody, the conduct must relate to the quality or judgment of one’s parenting or as it relates to the best interest of the minor children.

Substance abuse or alcoholism is one example.  Another would be in a custody battle where an absent or inattentive parent who is not properly caring for young children – leaving for hours at a time.  In one case, a mother’s boyfriend consumed too much of her time during the time the mother was to be parenting her six and nine year-olds.  The investigator was able to investigate the boyfriend’s background (we already established he spent a great amount of time with the mother and the young children) and conduct surveillance.  A subsequent investigation into the boyfriend’s background revealed a problematic history too long to explain here.

There are other reasons for ordering an investigation.  Getting the true story of the couples’ financial conduct is a common occurrence.  Since people generally are not experts in the practice of deception, paper records inevitably tend to exist.

For example, telephone bills reveal long distance numbers frequently called…credit card statements reveal unusual patterns of traceable expenditures…the location of ATM withdraws give clues, as does a hard drive on the family computer. 

If you have a sneaking suspicion relating to a family matter that you would like to get to the bottom of, contact us.  The investigators we work with stand ready to respond to our request for help with minimal advance notice.

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Divorce Mistakes:  The Top-10 List

Getting a divorce is a messy business, both personally and financially.  Don’t make certain decisions, or even reach a settlement, until you fully analyze your situation; otherwise, you could make one or more of these ten fatal mistakes:

1.   You must have razor-sharp drafting and specific wording in your settlement agreement.  After your divorce is final, your relationship with your future ex-spouse will change.  Sometimes the relationship changes for the better; sometimes it changes for the worse.  The more specific you can be with the terms of your support agreement and the details of the parenting plan – start and end times for your children’s parenting time, vacation times, holiday times, etc. – the better off you’ll be.

2.  Don’t have unrealistic expectations about finances.  Think about it this way:  one household is about to be split into two.  Unless you’re a rock star – or Donald Trump – expect money to be a little tight.

3.  Fully assess the pros and cons of getting the marital house – it is not always a good deal!  Women often want it because they are raising a family in it, they are proud of how they decorated it, or some other emotionally-based reason associated with the home.  If the house has a mortgage attached to it, think long and hard about it.  You might be better off selling the home and splitting the equity.  If you aren’t working, are under-employed and raising children, do you really want a large mortgage payment?

4.  Don’t get hung up on the numbers.  A fair split is not necessarily going to be an even split.  You may always wrestle with the question of whether to play fair or be tough, but remember to approach your divorce like a business.

5.  Focus on the present and not on the future.  Make sure you understand the financial implications of your decisions.  Rather than accepting a $60,000 Corvette, consider taking a mutual fund with the same current market value.  The car will depreciate; the fund, if chosen wisely, should appreciate.

6.  Pay attention to taxes.  We see this one all the time.  People negotiate, reach an agreement, and then get divorced without thinking through the tax impact of the concessions they have made.

7.  Don’t try to win a spouse back by being generous.  This is no less than a sucker’s bet. 

8.  Keep meticulous records of child support and payments during the first years of divorce.  You must keep proof of each and every child support payment you receive or make, whether it be a receipt, a copy of the check or a copy of the money order.  If you do not keep records of all of your child support payments until long after your child becomes emancipated you may have to pay your child support twice, because it is the payor’s responsibility to prove his or her payments.

9.  Never – ever – give up control of your divorce.  While your lawyer is a professional, he or she is a professional.  They are trained in how to represent your best interests in court and you need to listen carefully to the advice you are given.  But this is not your lawyer’s divorce; it is yours.  You are the one who will have to live with the results.

10.  When you and your former spouse change your agreement, file the modification with the court.  After your divorce is final, if you make any additional agreements about parenting time or child support, you must file the agreement with the Court.  Any oral agreement regarding child support, or even a written agreement signed by both parents, will not necessarily be upheld later. The later agreement is not a Court Order, and will not necessarily supersede the prior Court Order.  It is inexpensive and easy for you to file your documents with the Court, and will prevent future unpleasant surprises later.

Because of the long-reaching implications of a divorce, one of the best things to do is get competent and zealous legal representation from aggressive and experienced family lawyers.  We represent families throughout Massachusetts, including Newton, Wellesley, Weston, Wayland, Dover, Sherborn, Sudbury, Carlisle, Lexington, Boxford, Georgetown, Topsfield, and other communities in the counties of Essex, Middlesex, Suffolk, Norfolk, Bristol, Plymouth, Worcester, Barnstable, Dukes, Nantucket, Hampton, Hampshire, Franklin, and Berkshire.  We offer an extensive initial consultation where we discuss your family law matter in depth.  We will give you an honest assessment of your case in light of the facts, case law, and our extensive experience.  Contact us for a free, no-obligation consultation or call (781) 461-9800.