Family Law Attorney
Family law is an area that encompasses more than just the divorce process. Although many couples file a joint petition and use the option of no-fault divorce, other marriages concern disputes over custody of the children, visitation, spousal maintenance (alimony), distribution of property and debts. In some relationships that may or may not involve marriage, there is the specter of spousal abuse or domestic violence.
Heather M. Ward is a Boston family law lawyer who handles all types of family law issues that commonly or uncommonly arise whether you are married, separated, divorced, or have to deal with the other parent of your child regardless of your current or past relationship.
Common family law matters that Ms. Ward handles are summarized below:
Divorce terminates a marriage and the process can be amicable and relatively simple, or it can be contentious and complex. Massachusetts law requires you to state a reason for the divorce, but it allows couples to use the no-fault process or one based on one of 7 specific grounds. No-fault merely alleges that the marriage ended due to an irretrievable breakdown and does not require proof. If alleging fault, you must allege one or more of these grounds:
- Desertion or abandonment for one year with no support provided
- Cruel and abusive treatment
- Addiction to alcohol or drugs
- Refusal to provide financial support and maintenance although capable of doing so
- Incarceration for 5-years
If you fail to prove any of these grounds, the court could deny the divorce but you can easily amend your divorce petition to no-fault. In most cases, there is little to no benefit in following this option.
To file, you or your spouse must be a state resident. Petitions are filed in the probate court where one of you is residing or if one of you is residing in the county where you last lived together, it is filed there. Unless the parties proceed to trial, divorce cases also require the parties to draft an agreement that includes a parenting plan, the distribution of property and debts, and addresses alimony or spousal maintenance.
If you are in a gay marriage or consider yourself transgender and are married, Massachusetts law makes no distinctions from heterosexual divorce.
Custody and Visitation
In most cases, the parents agree on who will be the primary custodian or they may agree to joint physical custody, which the court prefers. The parties will generally have joint legal custody in which the parents must mutually agree on the material decisions regarding the children’s welfare such as healthcare, religious upbringing, education, and others. Reasonable visitation is the right of the non-custodial parent and may be granted even if he or she is in arrears in child support payments. A parenting plan outlining schedules, costs, vacations, schools, attendance at churches or synagogues, and other matters relating to the children must be part of the divorce or separation agreement.
If there is a dispute over primary physical custody, the parties can go to mediation or if unresolved, resort to litigation. If litigated, the court will require an investigation of the parents, their homes, finances, and other circumstances to decide what is in the best interests of the child.
Child support is based on the number of minor children of the parents, their gross income, monthly expenses, and other factors. There is a child support worksheet whereby you can calculate the child support payments owed by the non-custodial parent. Additional factors that are part of the calculation include retirement contributions, taxes paid, insurance costs, claims of personal exemptions, parenting time, and others. These calculations can be complex so you should confer with a Boston divorce lawyer to determine the correct amount.
In some cases, the court will deviate from the guidelines if there is a showing that the amount under the guidelines is unjust or insufficient. A child support order can also require the payor parent to provide health insurance for the children.
Spousal Maintenance or Alimony
Not all divorces require one spouse to pay alimony to the other. There are circumstances, however, where there is a significant disparity in the gross income of the parties or where a spouse demonstrates a need for financial support.
If you and your spouse are unable to agree on whether maintenance is needed and/or in what amount, the court can determine this after examining certain factors:
- Duration of the marriage
- Conduct of the parties during the marriage
- Age, health, occupation of the parties
- Income and sources
- Vocational skills and earning capacity
- Needs of the parties
- Contributions made to the acquisition, accumulation and preservation of marital assets
Alimony can be for a few or many years. It terminates when the recipient party remarries or may terminate or be suspended or reduced if the recipient spouse cohabitates with another person for at least 3-months. It also terminates when the payor reaches full retirement age.
Restraining or protective orders are not uncommon when a couple separates or decides to divorce and there is a legitimate fear of imminent physical harm to the spouse or children. Domestic violence also refers to a situation when one party in an intimate or former relationship threatens the other with physical violence or has placed you or your children in fear of imminent physical harm. Massachusetts law provides certain protections and allows you to obtain a restraining order against the other party provided you are or were related, are or were living in the same household, have a child together, or are or were in a substantial dating relationship (gay or straight).
A restraining order can order the other party to:
- move out of the shared home
- refrain from further contact with you and/or the children (no texts, emails, regular mail, calls)
- keep away from your place of work, school, and do not follow or come within a certain distance of you
- refrain from further abuse
- temporarily relinquish custody of the children
- pay temporary support
- surrender firearms
If the judge determines there is a substantial likelihood of immediate danger or abuse, a 10-day order is issued and a hearing is scheduled for all parties to attend, although the respondent may choose to not attend. At the hearing, the judge can decide to extend the order for up to one-year or terminate it.
Grandparents who are denied visitation of their grandchildren can petition the court for visitation rights, provided the grandchildren’s parents:
- are divorced
- married but separated
- never married and not living together
- one or both are deceased
If the parents were never married, the court will examine whether there was a preexisting relationship between the grandparents and grandchildren. The court must also decide whether the denial of visitation will create significant harm to the child’s health, safety or welfare. In other words, it helps to have a close bond with the grandchildren. In many cases, the evidentiary standard imposes a substantial burden on the grandparents. If the grandparent fails to meet this standard of proof, the court will usually defer to the wishes of the parent or parents.
After the divorce is finalized, there may be a change in circumstances in the ensuing years whereby a modification of the terms of the divorce are justified. These generally involve issues of child support, custody, visitation, payment of expenses, and alimony.
If the requested change involves child issues, the change in circumstances of the parties must be material and substantial and the requested change be in the best interests of the children. If for alimony, the standard is similar. These changes may include the following:
- A parent’s income has substantially increased or diminished due to illness, injury, or layoff that is not the fault of that party
- A child is emancipated
- The recipient party remarries or cohabitates with another party
- There is a significant increase in health expenses or insurance or a loss of heath insurance
- The needs of the child have substantially increased due to illness, injury or special needs
Modifications can also be arrived at by mutual agreement and presented to the court for approval.
Retain Boston Family Law Lawyer Heather M. Ward
As you can see, family law can be complicated and involve issues regarding children, property distribution, alimony, domestic violence, alimony and others. Boston family law lawyer Heather M. Ward has handled all types of divorces and the various issues involved to the extreme satisfaction of many of her clients. Call her today at (617) 903-8955 for a consultation about your family law matter.