Massachusetts Divorce Law Monitor

New Authority for Probate and Family Court Judges

Nancy Van Tine — Wed, 16 May 2012 16:08:00 -0500

Hi there,

Last Friday the Appeals Court posted a new decision on its website which broadens the authority of Probate and Family Court judges. In Cesar vs. Sundering, slip opinion No. 11-P-351, the Court held that a Probate and Family Court judge, in a case where the division of a family business is at issue, has the authority to prohibit the spouse who doesn't get the business from "operating" a competing business. In effect, the Probate and Family Court judges can now impose a non-compete on a divorcing spouse, that will continue after the divorce.

The authority for this comes from M.G.L. Chapter 215, section 6, which says:

"[Probate and Family Courts] shall, after the divorce judgment has become absolute, also have concurrent jurisdiction to grant equitable relief in controversies over property between persons who have been divorced."

However, a non-compete is basically restraining economic behavior, which is seldom done post- divorce.

Many litigated divorce cases involve family businesses, often because the valuation can be hotly contested. These cases also often have two reasonably co-equal partners. One generally receives the business, and the other gets cash or other assets for the value of the business. Since goodwill can be a large component of the value, and intimate competition could certainly dilute that, I can see where the thought came from. However, this seems to have more pitfalls than positives. Divorce is already a huge involvement of the government in family life post-divorce. Now, in addition to support orders, there is a real probability of limitations on income earning ability.

One thing I can be sure of is that creative divorce lawyers are thinking of where and how they could use this new "tool" in their current cases.

Best,

Nancy

Considering Military Pensions in Divorce Cases

Nancy Van Tine — Tue, 15 May 2012 10:04:46 -0500

Hi there,

My talented Burns & Levinson colleague, Ron Barriere, has worked on several military divorce cases. In this week's post, Ron explains important considerations regarding pensions and retirement accounts for military spouses facing divorce.

Enjoy!

Nancy

This past summer, while most Massachusetts divorce lawyers (myself included) were busily studying the new Alimony Reform Act, the Massachusetts Appeals Court issued an important decision concerning the treatment of military pensions in Massachusetts divorce cases. Casey v. Casey considered whether a military defined benefit plan could be properly included in the income of the former service member-spouse for purposes of calculating support or whether the pension itself was an asset subject to division.

By way of background, military retirement vehicles – like their civilian counterparts – commonly come in one of two varieties:

1) Defined Contribution Plans. These plans are characterized by fixed contributions paid by employers and/or employees, and contributions are then invested. Any returns on the investments are credited to the employee’s account. Common civilian defined contribution plans include Individual Retirement Accounts (IRAs) and 401(k) plans, but the most common military defined contribution plan is the Thrift Savings Plan, or TSP. The TSP – like its civilian counterparts – is easily assigned a value for the purposes of dividing assets in a divorce.

2) Defined Benefit Plans. These plans are retirement vehicles in which an employer promises a specified monthly retirement benefit to an employee that is predetermined by a formula that is usually based on the employee's earnings history, tenure of service and age. Generally, the only “defined” characteristic of the plan is the formula to be applied to the individual employee’s earnings history. In the federal context, some common examples include Federal Employee Retirement Services (FERS) Plans and Concurrent Retirement and Disability Pay (CRDP). A defined benefit plan in pay status was at issue in the Casey decision cited above.

Because of the variable nature of defined benefit plans, the value of such assets can be hotly contested in divorce actions, sometimes resulting in “a battle of the actuaries” to determine the appropriate value to be assigned in an equitable division of the assets. It is tempting, therefore, for the parties -- and the Court -- to “drop back and punt” the issue of pension payments to an “if, as, and when” consideration. After all, wouldn’t it be easier for everyone to simply divvy up the money when it actually starts rolling in? However, such a wait-and-see approach may keep divorcing spouses tied to one another financially for many years, an obviously risky situation.

The Federal Uniformed Services Former Spouses' Protection Act (USFSPA), leaves to the states the choice of whether to treat disposable retired pay earned for service during marriage as divisible property. Both the Massachusetts Child Support Guidelines (I-A(9), I-A(10), I-A(14) and Massachusetts General Laws (M.G.L. c. 208, § 34) specifically authorize the treatment of military pensions and retirement pay as income when calculating a support award. However, M.G.L. c. 208, § 34 also gives the Probate Court the authority to treat the retirement vehicles as an asset subject to division.

Though the Casey case dealt with the seemingly simpler task of the treatment of a pension plan already in pay status, the Appeals Court made clear that the treatment of such plans could have dire consequences – particularly for the recipient spouse. The stream of income would provide the receipient spouse with an interest subject to modification; and, the distribution of a marital asset would provide her/him with a fixed interest. Tax issues also arise, as child support payments and property division are both “tax free” transactions incident to a divorce, while alimony is taxable to the recipient and deductable to the payor. In the federal context, the assignment of at least some portion of pension benefits to the non-service member divorcing spouse is often necessary to ensure continuation coverage for TRICARE or other continued health insurance coverage. It is therefore critical that the specific facts and circumstances of each case be scrutinized to determine the most equitable way to treat the pension for both parties. In Casey, the Appeals Court ultimately concluded that the Probate Court had erred in treating pension payments as income as opposed to treating the plan itself as an asset subject to division.

Previously, I have written about how even the seemingly “simple” issues can be complex in the context of a military divorce. The Casey decision takes the point a step further. Any divorcing service members, or spouses of service members, should learn the nomenclature of military divorce and find qualified counsel familiar with its complexities to ensure that they are sufficiently armed for the battle of their divorce.

Division of Personal Property: Salad Spinners and Other Tall Tales

Nancy Van Tine — Fri, 27 Apr 2012 12:20:04 -0500

Hi there,

Every divorce is different, but they all follow similar emotional paths through the divorce process. One psychological similarity is that every divorce has a flash point.

Many, many years ago when I was a brand new divorce attorney, I represented a woman who had been married relatively briefly to a fairly wealthy gentleman. He had issues (no need to tell what they were, but they were embarrassing) and consequently felt very, very guilty and wanted to get the divorce over quickly.

As a result, he settled for more than was necessary for a gentlemen in his circumstances. The attorney on the other side (who was older and wiser than I) suggested I help the parties divide the personal property in their very expensive Boston condominium. Not knowing any better, I said "sure." We walked into the condo and the division went beautifully! They agreed on the furnishings, art, antiques, wine collection, silver, china and crystal (with my client taking the lioness' share).

Then we came to the kitchen and an $11.95 plastic salad spinner. They went to war.

Every bad thing ever said or done in the relationship spilled out. I had visions of the fabulous settlement going away because they were so furious. It took me at least a half an hour to get them to listen to me. Finally the husband conceded and we left with my client clutching the salad spinner to her chest.

We were standing waiting for the elevator and she shoved it at me saying, "Here take it. I didn't really want it. It was just the principal of the thing."

Every case has a salad spinner because in every case both parties have unexpressed anger and trigger points. Beware of yours and or your spouse's because the salad spinner can derail a settlement.

This is why NO experienced divorce lawyer ever agrees to be present when personal property is divided.

Best,

Nancy

New Probate and Estate Law in Massachusetts

Nancy Van Tine — Wed, 18 Apr 2012 15:34:50 -0500

Hi there,

Massachusetts, in addition to its new alimony law, has implemented a radical change in probate and estate laws. Click here for a clear explanation of these very murky changes, written by my Burns & Levinson partner, Cliff Cohen.

Best,

Nancy

Top 5 Signs Your Spouse is Hiding Money

Nancy Van Tine — Wed, 11 Apr 2012 14:04:27 -0500

Hi there,

Some folks are always honest, some folks are always cheats and some folks, when they feel threatened, can become cheats. That's a sorry truth in divorce work, because divorce is threatening. Lots of people try to hide money, and generally a good divorce lawyer can pick up the problem in the first client interview. I know this is usually considered to be male behavior, but I have found that women can be the cleverest at hiding money.

Here are my 5 top categories for setting off warning alarms.

1. No transparency. This can be a problem from the beginning of the marriage. You don't have joint accounts. There is no openness about finances and no real economic partnership. This makes it super easy to hide money! Every spouse should understand the family finances and be aware of what you have and how it is held, always. It just makes it too easy for a spouse to transfer funds and hide cash if you don't know how it all fits together.

2. A change in behavior. Instead of mail coming to the house, it goes to a spouse's office or he/she gets a post office box. The spouse opens new bank accounts and you don't see the statements. He/she gets new credit cards, and the bills don't come to the home. He/she has more than one cell phone, and you don't see the bills. The extra phone can indicate a lover, and that often means money is leaving the marriage.

3. A sudden decrease in income. One of my favorite quotes (and I have used it for so long I can't remember the source, other than it was another divorce lawyer) is, "once again, the magic alchemy of divorce turns yet another prince into a pauper." This can happen more often with the self-employed, as it is much easier to finagle finances in your own business than if you are a W-2 employee. If it occurs in conjunction with #2 above, watch out!

4. New and unusual economic behavior. This tends to be more on the spending side. The spouse is buying stuff which depreciates, i.e. a fancy car, a new motorcycle, boat or jet ski -- basically wild spending on toys. If your spouse starts running up large debts or cleaning out accounts to pay for new acquisitions, watch out!

5. Rushed and controlling. When tax returns need to be signed, you get the return on the day due and there is no time to read it, nor is there a copy for you to keep. Estate planning is rushed and/or unexpected, and you don't get to discuss the plans and their meaning with the lawyer. These and other areas where speed and lack of clarity can really hurt you are considerable.

The best protection is to be knowegable about your finances from the get-go, meet with your CPA and the family financial planner, and look at all the documents. Never, ever sign something blindly. If you feel your marriage is on shaky ground, consult an attorney to get to know your rights before its too late.

Best,

Nancy

Top Three Professionals You Need in Divorce Process

Nancy Van Tine — Fri, 23 Mar 2012 14:15:48 -0500

Hi there,

If you are thinking about divorce or have already commenced the divorce process, you should be considering what kinds of resources you will need to help you through this most difficult of times.

First, and I will admit to professional bias here, you need to consult an attorney. I've written before on how to do this.

Second, and regardless of how relieved you may feel about the divorce, you need a neutral person (or two!) to vent to and to help you deal with the normal feelings that will arise. Folks in the middle of a divorce go through the same emotional process as people dealing with the death of a spouse, with the nasty addendum that there is no rite of passage. No one will bring you jello-molds and casseroles. Your mutual friends may back away and not rally round. The neutral person could be either a therapist or a member of the clergy. I am amazed at how many clients still indicate that they are afraid to contact a therapist, theorizing that that seeking help in a difficult time equals proof of mental instability to the courts. It doesn't. Most professionals involved in the divorce process view a litigant's use of therapy as a positive NOT a negative. Most attorneys will be able to give you a reference, and if not try your primary care doctor.

Third, if you are the non-wage earner spouse (usually the wife) you should link up with a financial professional. In conjunction with your attorney a good financial person can help you understand what you will have to live on and how to manage your money going forward. The financial person will usually be brought into the process by your attorney. if this doesn't happen I would ask the attorney to help you get one. Often this is not needed until the discovery portion of the divorce is pretty well completed.

Divorce is difficult, but it can be conquered and with the right attitude and the right team in place, it can be if not good at least a useful experience.

Best,

Nancy

Pornography and Divorce

Nancy Van Tine — Thu, 08 Mar 2012 13:38:13 -0500

Hi there,

The last couple of times that I have been asked to be interviewed on television and on the Internet, the interviewer has been interested in stories of cheating spouses. The recent interview on the Internet was about how Facebook relationships have affected divorce. That made me go a step further and think about how the Internet has really changed the availability of pornography and how that very commonality has changed how the viewing of online pornography is considered in the divorce process.

When I first started practicing (when dinosaurs roamed the earth), catching a spouse viewing or reading pornography was almost as severe a shock as discovering a spouse cheating. It was brought up often as a reason for the divorce, in hushed tones and with a request to not let anyone know, because there was a LOT of shame associated with even mentioning it.

But, boy, has that changed as porn has become so much more easily available. In fact, we all spend a lot of money screening our computers to keep it from showing up unwanted, like say mice?

As a result, it has become much less of a hot button issue in divorce; some folks are still disturbed or disgusted by it, but for most it seems to only become an issue if there is an addiction and/or a lot of money has been spent purchasing it.

I am not talking about child pornography that is a crime and a heinous one, and still shocks and destroys, but most everything else appears to be pretty much viewed as normal.

I would love to hear what you think of this. Am I wrong?

Best,

Nancy

Video Interview: Discussing Facebook and Divorce with LXBN TV

Nancy Van Tine — Thu, 01 Mar 2012 14:38:23 -0500

Hi there!

Earlier this week I had the opportunity to discuss the subject of "Facebook and divorce" with Colin O'Keefe of LXBN TV. In our interview, I explain how frequently Facebook plays a role in divorces, how it's used in divorce proceedings and how couples can maintain a healthy marriage while having social media accounts.

Best,

Nancy

Three Changes in Massachusetts Alimony Law

Nancy Van Tine — Wed, 22 Feb 2012 14:32:42 -0500

Hi there,

If you are just starting the divorce process, or you have been divorced for years, March 1, 2012 is an important date. On that day the Massachusetts Alimony Reform Act goes into effect. While we don’t know how time or how judges' interpretations of the law will change it, we do know that there are three very important new considerations:

First, the time and term of alimony will be determined by a formula based on the length of your marriage. This will apply to completed divorces as well as future divorces. The only ones exempted from the formula are completed divorces where the agreement "survives" (this is a technical term which means that, in addition to being included in and part of the judgment of divorce, the agreement is a contract that can't easily be changed).
The second major change is that the amount of alimony will usually be defined as being between 30-35% of the payor's income. Although the courts used to often use percentages, the law spoke only of need and ability to pay.
The third and VERY major change is that alimony now will end when the payor reaches full Social Security age, which is currently 67.

For a more in depth analysis of the law, please see this article written by my colleague, Francine Gardikas. You should also, if you have a completed divorce, check back with your divorce attorney to determine how -- or if -- the new law effects you.

Best,

Nancy

Divorce-related Articles on Twitter

Nancy Van Tine — Wed, 08 Feb 2012 13:41:04 -0500

Hi there,

I'm on vacation, and since I can't stand to not work (I know, I know) I have been trying to improve my Twitter skills. I just started on Twitter in December and am thrilled at the amount of information at my fingertips. I probably "retweet" four or five excellent divorce-related articles daily, some of them serious and some of them not.

If you would like to follow me on Twitter to take advantage of this information, you'll find me there as @nancyvantine. I'll be back next week; sadly all vacations must end.

Best,

Nancy

California's 9th Circuit Has Ruled...

Nancy Van Tine — Tue, 07 Feb 2012 16:23:24 -0500

Hi there,

The federal 9th circuit, which admittedly is one of the most liberal courts in the country, has just ruled California's ban on same sex marriage is unconstitutional.

I think this pretty much gurantees a Supreme Court hearing. In any case, it's good news!

Best,

Nancy

Involuntary Abortion

Nancy Van Tine — Wed, 25 Jan 2012 16:26:46 -0500

Hi there,

A really shocking guardianship case was overturned by the Appeals Court last week. This kind of sad family problem can come up in divorce cases more frequently than in the general population because parents with disabled children are statistically more likely to divorce. My very able colleagues, Lisa Cukier and Tiffany Howard, kindly agreed to write a post for me on it. Read below and be amazed at what the courts can do...

A recent Appeals Court decision has the community buzzing about what laws are in place to protect a disabled adult’s right to make fundamental decisions for herself and under what circumstances a Court may override those decisions.

As described in this Boston Globe article, “Mary Moe” is a thirty-two year old pregnant woman who suffers from schizophrenia and bipolar disorder. This pregnancy is Moe’s third, with one prior pregnancy having ended in abortion and another having produced a son who is in the custody of Moe’s parents. Despite conclusive medical evidence to the contrary, Moe has denied her current pregnancy and refused obstetric care. The Department of Mental Health (“DMH”) filed a Guardianship Petition seeking the appointment of Moe’s parents to act on her behalf for purposes of consenting to an abortion. It was clear that Moe lacked mental capacity to either refuse or give informed consent to an abortion.

The Probate and Family Court judge (Judge Harms) appointed counsel for Moe, as well as a guardian ad litem (“GAL”) to investigate whether Moe, if competent, would choose to terminate her pregnancy. It is necessary that people who are declared incompetent have independent representation in Guardianship proceedings that involve extraordinary medical decisions, such as abortion. Additionally, when these proceedings are contested, as this one was, the Court must hold an evidentiary hearing to protect the incompetent person’s right to be heard in a meaningful way. These cases are governed by a “substituted judgment” standard: The judge must rule in a manner consistent with what the evidence shows the disabled person would choose if she were competent to make decisions for herself.

After investigating Moe’s history and current expressed preferences, the GAL concluded that, if competent, Moe would decide against an abortion. Moe’s attorney opposed the DMH’s Petition, and despite this opposition, the judge did not hold an evidentiary hearing on the issue. Instead, Judge Harms appointed Moe’s parents as co-Guardians and ordered that Moe could be “coaxed, bribed, or even enticed . . . by ruse” into a hospital to undergo an abortion, and further ordered, on the judge’s own initiative, that the physician who performs the abortion should simultaneously sterilize Moe “to avoid this painful situation from recurring in the future.”

Moe appealed the abortion and sterilization order. The Appeals Court overturned Judge Harms' decision, holding that individuals have a fundamental right to procreate, and are entitled to the due process protections of an evidentiary hearing and meaningful application of the “substituted judgment” standard before the court orders an abortion or sterilization. Because no such evidentiary hearing had taken place, and in fact no one had even asked for sterilization, the Appeals Court sent Moe’s case back to the Probate and Family Court, reminding the judge, “In utilizing the doctrine [of substituted judgment,] the court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent.”

This case is most noteworthy for its emphasis on the disabled person’s due process rights. It illustrates the spirit of the 2009 overhaul of Guardianship and Conservatorship law in Massachusetts: incapacitated persons retain rights to autonomy and self-determination.

Terrific Thoughts on Lawyering

Nancy Van Tine — Tue, 17 Jan 2012 12:21:12 -0500

Hi there,

I should have put up a post on Martin Luther King Day, but I didn't. Then this morning Tax Girl had a truly wonderful post about being a lawyer, and Dr. King. I am simply linking to this because it epitomizes for me (and I am sure for many of us) what being a lawyer is about, both good and bad.

Best,

Nancy

Divorce Valuation Rules Reaffirmed

Nancy Van Tine — Thu, 12 Jan 2012 16:35:46 -0500

Hi there,

Today the Massachusetts Appeals Court (the second highest court in the state) overturned a divorce judgment in the Caveney case dealing with valuation of interests in closely held businesses. In the process they clarified the standard to be used for divorce purposes in valuations.

Before the Bernier case in 2007, valuations of closely held businesses applied "Fair Market Value," which is what a willing buyer would pay a willing seller. The experts would then apply discounts which reduced the value, first for lack of marketability. If the business interest was a minority interest, they would apply a discount for lack of control. These two discounts can and did make an enormous difference in the values applied. Post Bernier, most experts use (or at least discuss) using "Fair Value," which generally means no discounts for marketability or lack of control.

In Bernier, the divorcing couple owned supermarkets on Martha's Vineyard. These markets were not for sale. The judge -- a very capable judge (disclaimer here, she once was a partner of mine) -- not unreasonably applied discounts. The wife appealed and the Appeals Court held that the discounts should not be applied. The Bernier decision had been read more narrowly; this decision eliminates that argument. This case, and in circumstances where a sale of the asset is not contemplated, makes it clear that Fair Value is the standard to be applied.

Best,

Nancy

Top Twelve Tweets of Twistmas... did I really write that???

Nancy Van Tine — Fri, 16 Dec 2011 11:28:00 -0500

Hi there,

I have been struggling to learn how to tweet (I can't tell you how I shudder to use that word; my English teacher mother is rolling in her grave). Despite my whining I am truly addicted to how much information you can get on Twitter, and keep getting on an ongoing basis.

From the hundreds of tweets out there everyday relating to divorce, I have selected below my Twelve Tweets of Twistmas....

Divorce Research 2011: Top 11 Findings Of The Year (via @huffingtonpost)
Divorce After 50: Why It's More Complex (via @Dad'sDivorce)
When Your Ex Goes Overboard at Christmas (via @huffingtonpost)
Hulk Hogan Files Defamation Suit Against Ex Linda Bollea Over Autobiography Claims (via @foxnews)
Three Holiday Divorce Mistakes to Avoid (via @Dad'sDivorce)

6. Dating After Divorce: How To Not Use Social Media (via @huffingtonpost)

7. Do Men Really Get a Raw Deal in Divorce? (via @huffingtonpost)

8. How do Divorced Mothers Manage New Relationships? (via @huffingtonpost)

9. Communicating with your Ex (via @divorcemagazine)

10. Helping Children Survive Divorce: Why Holiday Traditions Matter (via @huffpostdivorce)

11. How to Have Happy Holidays with a Busy Blended Family (via @huffingtonpost)

And if you've suffered through all 11 above, you certainly deserve a laugh with number 12!

12. The Twelve Divorced Days of Christmas (via, you guessed it, @huffingtonpost)

Best,

Nancy

Planning For The Future When You Have A Disabled Child

Nancy Van Tine — Mon, 12 Dec 2011 09:50:00 -0500

Hi there,

Divorce is even tougher if you have special needs children. They need more stability and the divorce agreement should reflect their needs. My very skilled colleague, Elizabeth Crowley, has written a great post on special needs trusts, which are as necessary in a divorced family as in an intact one...

How many of you have in your immediate or extended family, or know someone who has in their family, a disabled child? In my extended family alone, there are three children who are affected in varying degrees by Autism Spectrum Disorder. I know firsthand the extraordinary efforts their parents take to obtain services, advocate for their children, and ensure that their children's current and future needs are taken care of.

One of the greatest concerns parents and caretakers have is planning for the disabled individual’s future needs after the parents' deaths. Will the child be able to live on her own? Will she be able to hold down a job and earn a living? Or, in the most severe of cases, might she need around-the-clock care and significant financial support during her entire lifetime? And, beyond that, how will it be paid for?

Those are the very difficult conversations parents have when their child is disabled. And, the sooner those conversations are had, the better, as having a solid plan in place is vital to securing the child’s future.

One of the key challenges in planning for disabled children’s financial futures is to ensure that their government entitlements are not jeopardized. In order to qualify for the Social Security Administration’s Supplemental Security Income Benefits (“SSI”), a disabled adult cannot hold more than $2,000 in assets, excluding a car and a home. SSI benefits must be spent on food, clothing and shelter expenses. When you get SSI, you may also be eligible for food stamps and Medicaid, which pays for medical expenses, mental health services and nursing home care. For obvious reasons, parents do not want to jeopardize their child’s receipt of these important benefits by leaving property to them under their will that would disqualify them. While some parents rely on other children to take care of their disabled sibling’s needs when the parents are gone, there are no guarantees, and oftentimes parents want greater assurances than simply “a handshake.” Even if a sibling had every intention of paying for their disabled sibling, unexpected events such as a bankruptcy or divorce can throw a wrench in the equation. A Special Needs Trust, or a Supplemental Needs Trust, is oftentimes the solution.

A Special Needs Trust can be used to hold assets for the benefit of a disabled child. The key with a Special Needs Trust is that while the disabled child will benefit from the assets, he or she does not “own” the assets. The assets owned by the trust are to supplement the needs of the disabled individual that are not otherwise covered. It cannot be used to pay for things that SSI or Medicaid covers. The assets in the Special Needs Trust can, however, be used toward the “extras” that improve the quality of that disabled child’s life, such as specialized programs or camps for a young disabled child, or even a comfortable recliner for a disabled adult with paralysis or mobility problems. Oftentimes, Special Needs Trusts are funded with life insurance. Life insurance can be a cost-effective way to fund a Special Needs Trust for a family that may not have a sizable estate. The bottom line is that there are a variety of funding options depending upon your family’s individual financial circumstances and goals.

Tis the Joyous Season: (maybe not?)

Nancy Van Tine — Tue, 29 Nov 2011 16:15:28 -0500

Hi there,

I spent some time waiting in court today for my case to be called, and realized while listening to the arguments ahead of me that this is the happy time of year when divorce lawyers are negotiating the minefield of holiday parenting time. This is tough for all concerned. Hanukkah begins on December 20th this year and Christmas is, of course, the 25th.

If you don't have the holiday parenting time arranged by Thanksgiving and your ex is giving you trouble, then many of you will unfortunately end up in court in the first few days of December fighting over parenting time and access.

Every year I blog about this and the theme is the same: Start early and be reasonable. There are many ways to do this, but either sharing or alternating the holiday seems to be the most common arrangement. Sometimes, if you don't have the "important day" or the "critical" (to your family) part of the important day, you can trade that time for more vacation time. I know some folks split the vacation, while others simply alternate the holiday and the vacation annually.

This can be the toughest point in the year, especially if your divorce is recent. I came across some very good tips recently on how to weather the holidays if you have kids. Good luck.

Best,

Nancy

Happy Thanksgiving!

Nancy Van Tine — Wed, 23 Nov 2011 14:05:54 -0500

Hi there!

Have a Happy Thanksgiving all, and try not to get trampled on Black Friday!

Best,

Nancy

The New Normal

Nancy Van Tine — Thu, 10 Nov 2011 14:30:35 -0500

Hi there,

We don't live in a vacuum and what is happening in the global economy affects all of us (think of your 401K's roller coaster ride this year). If you are divorcing, you, your counsel, and hopefully your financial advisor, should be thinking about what nasty surprises may be in store as a result of the economic decisions you are making now.

You should try not to put all of your eggs in one basket (I have been dying to use that mega cliché). It used to be that it was considered economically OK to keep the marital home in exchange for your spouse getting pension assets. Not so much anymore. Marcelle Sussman Fischler writes in Forbes that the house is a "hot potato." There are few teeth left to the old argument that the house should be transferred in exchange for another asset when the equity in the house is negative. Some folks are opting to hold on as joint homeowners for a few years in the hope that the market rebounds; this makes a lot of sense if you have kids in a school system, but it does tie you together. It means you and your soon-to-be-ex will need to discuss and decide how to share repair expenses, payment of principal on the mortgage, sharing of tax deductions and how you will handle the practical details of selling it.

I am seeing appraisals of real estate come in much higher than what the parties think the market value really is. In many cases it makes sense to sell and divide the equity. If you choose to keep an asset at what you believe is an overvalued price, you are actually buying that asset for too much money.

Retirement accounts, while very volatile right now, are easier to divide in a crazy market as they are usually divided across all stock positions so both of you will gain or lose in similar fashion. I recently wrote about Massachusetts' new Alimony Reform Act, which makes clear that support ends at the payor's retirement age. This also makes the decision to keep the house while your spouse keeps the retirement accounts very problematic unless you are young and expect to have time to earn a decent retirement yourself.

Many people have vacation homes and these are also a problem, as the second home market has had as deep, if not deeper, decline than for first homes. Second homes are a luxury that fewer people can afford, so fewer buyers are out there and prices are lower. More grim reality: Often the vacation home is something neither spouse wants or can afford. For divorcing folks, losses in the market will translate into realized losses as well.

Of course if you have assets you want to keep, like a business, that are depressed as a result of market conditions, then this is a good time to get divorced.

The current economy is nasty and that means you should get a financial advisor as well as a lawyer. For many of you, your future will be determined by the asset choices you make in your divorce.

Best,

Nancy

Pets and Divorce

Nancy Van Tine — Thu, 27 Oct 2011 15:27:38 -0500

Hi there,

It's coming up on Halloween and the pet stores are selling pet costumes...

I have two big dogs and one very tough cat, and while I don't think I'm going to be buying them costumes any time soon, I do understand the urge. We think of and feel about our pets the way we do our children. If you don't have kids, your pets fill that slot. I'm a grandmother and I refer to the dogs as "my boys."

Any person, pet or child (am I anthropomorphizing or what here?) who is loved and who is in the middle of a divorce can become the subject (object?) of acrimony. We have had cases here at Burns & Levinson that dealt with custody of dogs, cats and once, memorably, a horse. I have negotiated, admittedly as part of a multimillion dollar divorce, an extremely detailed visiting plan for a dog. There isn't any case law in Massachusetts that treats animals as anything other than property, but that doesn't stop pet owners from feeling otherwise.

Divorce is not the only time we think of pets. For example, Leona Helmsley's $12 million bequest to her Maltese triggered a lot of discussion. Possibly as a response, Massachusetts has created a new pet trust law. My able partner, Cliff Cohen, has written an interesting piece on pet trusts. I would not be surprised to be negotiating one soon.

Have a safe and happy Halloween!

Best,

Nancy