#contesteddivorceattorneys

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The Salant lawyers frequently assist clients by preparing uncontested divorce agreements and finalizing all necessary divorce papers.

Read more… https://goo.gl/U4Ykap

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Does My Spouse Have an Interest in My Business When We Divorce?

In a divorce, money can be one of the biggest issues spouses fight over.  However, when one (or both) spouses own a business, this can be an even more complicated (and sometimes uglier) fight.  A common question business owners ask when they are going through a divorce is whether their spouse has an interest in the business.  The short answer is yes, but it’s not as straightforward as you think.   Under Massachusetts law, all assets owned by spouses, regardless of whether or not they are joint assets, are marital assets.  This can include a family owned business, even if only one spouse has an interest in that business.  That means the business is a marital asset that is subject to division in equitable distribution.  However, that doesn’t necessarily mean the non-business owner spouse will end up owning the business or having a financial stake in the business through the divorce.  Massachusetts General Laws chapter 208, section 34 outlines factors the Probate and Family Court must consider in the division of marital assets.  Those factors are:   Length of marriage.   Conduct of the respective parties during the marriage.   Ages of the respective parties.   Health of the respective parties.   Station of the respective parties.   Occupations of the respective parties.   Amount and sources of income of the respective parties.   Vocational skills of the respective parties.   Employability of the respective parties.   Estates of the respective parties.   Liabilities of the respective parties.   Needs of the respective parties.   Current needs of the minor children of the marriage.   Future needs of the minor children of the marriage.   Opportunities available to the respective parties for future acquisition of capital.   Opportunities available to the respective parties for future acquisition of income.   Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.   Contributions of Husband and Wife as homemaker.   These factors must be considered as a whole.  However, one factor that often is given a little more weight on this issue is the “Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.”  Here, the court looks at what the non-business owner spouse contributed toward the business.  Did they help out at the business with any work such as bookkeeping or administrative support?  Did they help with any business dinners or important business meetings and events?  What a spouse contributed towards the business can be an important factor.   However, another important factor is “Contributions of Husband and Wife as homemaker.”  Did the non-business owner spouse take care of the children and the household so the business owner spouse could have more time to manage the business?  If the non-business owners spouse did help in this capacity, this can be another important factor in what, if anything, the non-business owner spouse is entitled to from the business.   The Probate and Family Court will also consider when the business owner spouse acquired an interest in the business.  Was it several years before the couple was married, and the business owner spouse put in their own work before the marriage to make the business profitable? Or was the business acquired only months before the divorce was filed?  These are also important factors.   As if analyzing the Section 34 factors isn’t enough, the Probate and Family Court will also need to know what the business is worth.  This often requires a business appraisal by a financial expert certified to appraise businesses.  These appraisals can be costly, but the return can be potentially significant.  In doing a business appraisal, the expert commonly puts a monetary value on the business owner spouse’s interest in the business, but will also set a salary for which support can be calculated.  This is where things can get confusing.   Although a business owner spouse is drawing an income from that business, it may not be the “correct” income based upon business appraisal standards.  Some common issues that the appraiser must consider are: 1) is the business owner using the business to pay his/her own personal expenses; 2) is the business owner working a normal number of hours; 3) does someone else in the business (oftentimes a relative) have the control to manipulate the spouse’s income.  This all has to be factored into valuing the business and also coming up with the business owner’s appropriate income.   Once this is all considered, then it’s time to decide what, if anything, the non-business owner spouse is entitled to from the business.  Oftentimes, the salary that has been calculated by the business appraiser is used to calculate child support and/or alimony.  After that, once a value is set for the business owner spouse’s interest in the business, the court determines what the non-business owner spouse is entitled to.  If the Court determines that the non-business owner spouse is entitled to share a of the business, this is usually accomplished not by the spouse actually acquiring an ownership interest in the business, but by receiving a payout by the business owner spouse.  Sometimes this is made in the form of one lump-sum payment, and other times it is made in installment payments over time.  Either, way, the non-business owner spouse is monetarily compensated for their share in the business.   Determining a non-business owner spouse’s interest in the other spouse’s business can be complex and confusing. It is important to ensure you have a knowledgeable divorce attorney and a business appraiser to guide you through this process, regardless of which side you are on. Read the full article

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Financial Planning For and During a Divorce

A divorce brings about many changes in a person’s life.  One of the most significant changes is the financial impact of a divorce.  Spouses go from having a combined household with (usually) two separate incomes, to living apart, and supporting themselves on their own.  If you are contemplating a divorce, or have already filed for divorce, there are different actions you can take to plan for your own financial future after a divorce.   Create a Budget:   Review your household expenses to see what your weekly/monthly expenses come out to.  In addition to including the usual expenses (i.e. mortgage/rent, utilities, heat, cable TV, telephone, groceries, clothing, etc.), don’t forget to include other typical expenses, such as uninsured medical expenses, motor vehicle expenses, child care, vacation and entertainment, education costs for yourself and your children. Once you have your budget, look at what your income is, and what it is likely to be at the end of the divorce.  Don’t forget to factor in any alimony and/or child support that you may be paying or receiving. Based upon the budget you create, you can figure out whether you need to make any cuts in the budget, where you can.  Also, if based upon your budget, you can determine what assets may be best for you to walk away with in the divorce, once marital assets are divided. Determine What Your Income Will Be: As part of your budget, you will want to consider what your income will be after the divorce.  If you are working, you will know what your income will be from work.  However, you will also want to consider if you will be receiving or paying child support and/or alimony. In Massachusetts, a child support order can run until children are 23 years old, provided they attend college.  Spouses must take this into consideration when factoring their income.  Massachusetts has Child Support Guidelines for spouses to calculate the child support order based on their respective incomes.  Generally, the first $250,000 of the parties combined gross income is used to calculate child support. As for alimony, if the parties have children, and have a combined gross income of over $250,000, then there is a chance that the lesser earning spouse could receive alimony.  There are exceptions to this $250,000 gross income, where a spouse may receive alimony and the parties do not have a combined gross income of $250,000, but these are highly fact-specific circumstances.  If there are no children of the marriage, then there is no minimum income used to calculate alimony.  However, that doesn’t guarantee that alimony will be awarded.  There are many factors considered in awarding alimony, as outlined in M.G.L. c. 208 §53.  Each spouse should consult their respective attorney to determine whether there will be an alimony order in their case. If alimony is awarded in a case, it will be based upon a formula developed when the Massachusetts Alimony Reform Act of 2011 went into effect.  There 4 types of alimony in Massachusetts: 1) General Term Alimony; 2) Rehabilitative Alimony; 3) Reimbursement Alimony; and 4) Transitional Alimony.  Depending on the specific facts of your circumstances, any one of these types of alimony could be awarded in your divorce.  The amount and duration of the alimony will depend on the type of alimony awarded.   Determine What Assets You Will Receive in the Divorce: As part of a divorce, all marital assets are divided.  This includes all bank accounts, investment accounts, retirement accounts, stocks, future inheritance, real estate, business interests, vehicles, personal property, and any other property owned by the spouses.  When negotiating the division of assets, consider your income and your budget.  Is it more beneficial to you to receive liquid assets, such as investment accounts, or is it better for you to receive real estate?  The answer to this question is always fact-specific, but you should consider your circumstances, and what would meet your needs most once the divorce is finalized. Retaining real estate can give some continuity, particularly if you are retaining the marital home for the children to continue living in.  However, real estate doesn’t make cash available to you immediately.  The real estate can appreciate or depreciate, and you will not get your equity out of the real estate until it is sold.  Whereas, liquid accounts will give you access to money fairly quickly. Each person should also consider the tax consequences of retaining each asset, as there usually are tax benefits or tax penalties for retaining or transferring certain assets. There is no “one size fits all” answer to this question.  Each person should review their financial circumstances to determine what works best for himself/herself.   Start Your Financial Independence from Your Spouse: Towards the beginning of your divorce, you will want to begin your financial independence from your spouse.  Massachusetts has a prohibition on depleting, transferring, or encumbering marital assets, pursuant to Supplemental Probate and Family Court Rule 411, so you cannot unilaterally deplete, cash out, or transfer any assets.  However, you can begin your financial independence by opening your own individual bank account.  Once the account is opened, you can begin depositing your income into this account, and using this account for your regular living expenses. You may also want to open a credit card account without your spouse as a joint user.  That way you begin to build credit in your name alone. By taking these steps, you begin to segregate your finances from your spouse, and begin to understand how to manage your money without your spouse’s involvement.   Consult a Financial Advisor Depending on the total value of the marital estate, and each spouse’s gross incomes, it may be wise to retain a Financial Advisor, to assist you through the divorce process and give you guidance as to a budget, the tax consequences of divorce, and also what assets you should retain.  There are financial advisors who specialize in divorce, known as Certified Divorce Financial Analysts, who can guide you through this process.   Read the full article

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What You Should Know Before You File for Divorce In Massachusetts

Divorce, word cloud concept on white background. Divorce can be a confusing and complicated process.  Negotiating your way through the court system can be difficult, particularly if you don’t have the assistance of an attorney to guide you through the system.  Here are some facts and other things you should know about filing for divorce in Massachusetts.   A vast majority of divorces settle before trial. There are 2 ways to file for divorce in Massachusetts.  The first is a joint petition, in which both spouses jointly file for the divorce.  The other is a Complaint for Divorce, where one party files, and the case proceeds in a contested matter.   In the first method, a Joint Petition can be resolved relatively quickly.  After the parties file all the necessary paperwork with the Court, including a signed Separation Agreement, the parties are then assigned an uncontested hearing, which is usually scheduled a few weeks to a few months from the date of filing, depending on the backlog of each court.  After the uncontested hearing, the divorce is finalized.   With a Complaint for Divorce, the matter is assigned to a judge, and follows a contested litigation track until the case is resolved by settlement or by trial.  The Probate and Family Court assigns all contested divorces to a 14 month time track, which means it estimates that all divorces will be resolved within 14 months.  Oftentimes, divorces are resolved in much less than 14 months, but the 14 month time-track is simply and estimated average.   Also, about 95% of all contested divorces do ultimately settle.  Thus, it is highly unlikely you would ever have to go to trial once you file for divorce.   Set Goals and Realistic Expectations. In a divorce, many spouses think they will ultimately “have their day in court” or “tell their story.”  Although many facts do come out during the course of a divorce, spouses do not typically get a day in court where they can air their dirty laundry and tell their side of the story of the divorce. Realistically, the Probate and Family Court is very backlogged.  This means, spouses are limited to the specific facts needed for the hearing scheduled that day.  If it is a motion for child custody, the court will want to hear about each spouse’s ability to parent, and not about refinancing the mortgage on the house.  If it is a motion about alimony, then the court will want to hear about each party’s income, not about one spouse returning a child a half hour late last week.  There will never be a hearing for each spouse just to tell their side of the history of the marriage. With that in mind, spouses should set some goals and expectations that are realistic for the divorce process.  Spouses should consider what needs to be presented to the court to obtain these goals.  Issues each spouse will want to consider are: 1) alimony; 2) division of marital assets and marital debt; 3) child custody and parenting plan; 4) child support and payment of college costs; 5) maintaining life insurance; 6) maintaining health insurance; 7) filing taxes and the tax dependency exemption. These are the main categories that will be addressed in the divorce.  Each spouse should consider what he or she wants out of each of these categories, and narrowly tailor their argument for each issue.  Each spouse should set realistic expectations.  If a spouse expects to “take their spouse to the cleaners,” then those expectations are not realistic.  Divorces are resolved equitably, which means any resolution must be fair and reasonable for both spouses.  That typically involves some give and take.   Don’t fight over the small stuff. All too often when spouses are nearing the end of a divorce, they begin fighting over small stuff, such as knick knacks in the house.  Spouses can spend hours fighting over little things, that may not have large monetary value, but it is one of the last few items to address, and so each spouse wants to “win” and keep whatever he or she is fighting over. The reality of it is, this probably isn’t worth it in the long run.  Spouses will spend more money paying their lawyers to go back and forth fighting over the item, than the item is worth.  Spouses should really consider if such small things will be worth it in the long run.  If it isn’t worth fighting over and keeping in the long run, then it probably isn’t worth paying your lawyer to fight over now. Only you can decide what is best for you. During a divorce, you may have your attorney giving you legal advice, and you may even have a financial advisor or other expert giving further input.  Remember, only you know your circumstances best.  As the party to the case, you are the master of your case.  Your lawyer has an ethical duty to act in your best interests.  Thus, when it is time to make important decisions in the case, you should rely upon what you feel is best for you.  Don’t rely on anecdotal stories from friends and family.  You certainly should consider what your attorney recommends, and any other experts you retain.  However, always remember to keep your expectations realistic. Stay Organized. During a divorce, you will be asked to gather and exchange a lot of documentation.  This includes a financial disclosure at the beginning of the case, pursuant to Supplemental Probate and Family Court Rule 410, and then documents requested in discovery later on.  The more organized you are, and the more documents you can gather on your own, the less you will have to spend on legal fees for your attorney to gather and obtain these documents.   Hire an Attorney. Divorce is a highly technical process.  Even if a spouse chooses not to hire an attorney, he or she will still be held to the same standard attorneys are held to when presenting issues to the court.  That means, spouses who represent themselves, will have to understand the Rules of Evidence and also the Rules of Domestic Relations Procedure in order to have their issues properly presented to the court.  This oftentimes results in spouses no getting the point across to the court.  Attorneys can be costly, but the cost of not hiring an attorney can be even greater.  If a spouse cannot afford an attorney for the entire divorce process, then he or she should consider hiring an attorney for a limited purpose.  Under the Limited Assistance Representation program, qualified attorneys may represent a spouse in a divorce (or any other Probate and Family Court matter) on a narrow issue.  This can be arguing a single motion, drafting certain documents to be submitted to the court, or reviewing and discussing strategy with the spouse.  This is often less costly, but can yield invaluable legal advice and assistance to the spouse.   You will get divorced in the end. Although the divorce process may seem long and drawn-out, it will end.  Just be patient and keep calm throughout.  Remaining level-headed and not losing sight of the goal will help you make good decisions.  There may be times that it feels like the divorce will never end, but it will.  The 14 month time track the Court assigns is a good prediction of how long your divorce will take.  In all odds, you will be divorced in 14 months or less. Read the full article