Your Day in Court

• Know Your Judge
• How to Help the Judge Rule In Your Favor
• Taking Inventory & Defining the Marital Estate
• Sample Divorce Agreement Checklists

Know Your Judge

A good attorney in Massachusetts will know many of the 51 Probate and Family Court judges sitting in the 14 different family courts.  It is essential that your lawyer know how a judge habitually rules on certain issues.  For example, if you are going before a judge on the issue of earning capacity, your lawyer should know how that person has ruled on this issue in other cases.  If your attorney has not appeared before a particular judge before, he or she should be able to contact colleagues to gather information.  It is also possible to get copies of a judge’s published opinions.  In addition, judges often lecture at colleges, universities, law school and continuing education classes and may have spoken on the issues relevant to your case.  It is very important that you know a judge’s biases.  Knowing a judge’s prior ruling history may change the way you see and plead your case.  Let’s suppose you’re planning to argue that no earning capacity should be imputed to you.  That tune could change if you learn that your judge believes that both parents should work as soon as children are in school.

Another important factor:  judges have varying levels of sophistication when it comes to understanding financial issues.  If you have a case that is complicated financially, you may want to get your lawyer’s advice as to whether or not your judge dealt knowledgeably with issues like those in your case in the past.

It is important to go into your case fully prepared.  You should consider all the variables and options that a judge may take into consideration before you set foot in the courtroom.  Most cases generally end up settling at some point, but you may find that you need to be aggressive at some points in the process if your attorney – or even the judge –don’t serve you well or abuse their discretion and don’t apply the law to your case as required.

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How to Help the Judge Rule In Your Favor

Massachusetts General Laws, Chapter 208, Section 34 sets forth 21 different parameters for which the Probate and Family Court will divide the property and determine spousal support as it relates to your impending divorce.

Each factor is viewed independently and the Court uses its equitable power to divide your marital estate fairly – not necessarily equally – based on its findings relating to those parameters listed below.

Here’s how you can help both your lawyer and the judge:  Take one or two pages of paper and lay out the specific history of your marriage as it relates to each of those 21 points below.  Once you do this, it will assist your legal team in properly assisting you.

1. Length of the Marriage

1. Chronological History of the marriage from the date you met to the date of separation.

1. Set forth the high and low points of the marriage indicating dates, times and locations to the best of your ability
   
   Examples:
   Daily activities and weekend events
   Vacation with or without the family
   Child bearing – set forth each experience
   Relationship with relatives and in-laws
   Effect of each partner’s employment on the marriage

2. Complete history of wife from childhood to present

1. Family background
2. Her education to present
3. Employment history to present

3. Complete history of husband from childhood to present

1. Family background
2. His education to present
3. Employment history to present

4. History of the children

1. Names and addresses
2. Dates and places of birth
3. Background of each leading up to present:  education, health, relationship with both parents

2. Conduct of the parties during marriage.

1. Treatment toward each other

2. Physical abuse  –  Oral/Verbal (assaults)

1. Describe any incidents with dates and places
2. Physical violence
3. Any witnesses present – names and addresses
4. Any police reports or written document to support the same

3. Absenteeism from home:  reasons (social, business, extra-curricular)

3. Age of the Parties

1. Dates of birth of both parties

2. Place of birth

4. Health of the Parties

1. Give complete medical history of yourself

2. Give complete medical history of your spouse

3. For both spouses:  List names and addresses of all hospitals, sanitariums, nursing homes or other attended institutions

4. Updated medical records on past, present and future problems concerning yourself

5. Station (status) of the Parties

1. Country clubs

2. Organizations

3. Standards of living (Class)

4. Memberships
   
   
6. Occupation of the Parties

1. Wife

1. Duties – present/future
2. Employer(s) – list addresses and periods of employment
3. Job Descriptions

2. Husband

1. Duties – present/future
2. Employer(s) – list addresses and periods of employment
3. Job Descriptions

7. and 8.  Amount and Sources of Income of the Parties

1. List all sources of both parties
   
   Examples:

1. Job
2. Stocks
3. Bonds
4. Mutual funds
5. Bank accounts
6. Trust funds
7. Real estate
8. Pensions or Profit sharing
9. Life insurance
10. Other Income

9. Vocational Skills of the Parties

1. List for both parties

10.  Employability of the Parties

1. Ability to work
2. History of seeking employment

11. Estate of the Parties

1. List all assets –

1. Real estate:  Location, copies of deeds, book, page #s, etc.
2. Personal property
1. Furniture – list by room
2. Bank accounts and certificates of deposit (CDs)
3. Stock holdings (shares), names and amounts
4. Mutual funds
5. Life insurance (name of companies, amounts, premiums, type of coverage, etc.)
6. Trusts
7. Motor vehicles and all other vehicles
8. Jewelry

12.  Liabilities of the Parties

1. List all mortgages
1. Names and addresses of banks
2. Amount(s) owed
3. Amount of payments
2. List all outstanding amounts owed for any debt
   
   Example:  Banks, credit unions

1. Names and addresses of creditors
2. Reason for debt
3. Who incurred debt
4. Who signed for the debt (note or credit card?)
5. Who has possession of property related to debt
6. Original amount of debt
7. Present balance
8. Weekly payments

Tip:  Add up total of indebtedness in chronological order of such loans

13.  Needs of the Parties 

1. Standard of living

14. Opportunity of the parties to acquire future capital assets.

1. Wife
2. Husband

15. Opportunity of the parties to acquire future income.

16.   Contribution of the parties in the acquisition of their estate.

1. What did the wife contribute
2. What did the husband contribute
3. What did the wife’s family or children contribute
4. What did the husband’s family or children contribute

17.  Contribution of the parties in the preservation of their estate.

            A.  Who handled the monies

            B.  Who established the standard of living

            C.  Which spouse did the economizing or saving

18.  Contribution of the parties in the appreciation of the value of their estate.

1. Which party maintained the property
2. Which party maintained bank books, stock, life insurance and reinvested interest or dividends

19.  Contribution of the parties as homemakers to the family unit.

1. Which spouse is responsible for keeping the family together
2. Describe the process used to maintain the family love and respect, relative to the health, education and welfare of the children (if any)
3. Describe what each spouse contributed to this process – in detail

20.   Present and future needs of dependent children of the marriage.
Please set forth a list of costs that you are claiming as they relate to:

1. The children's present financial needs.
   Example: clothing, school activities/education, medical attention, and other special needs
   
2. The children's future needs.  Example: health, education

21.       Opportunity of the parties to acquire health insurance or other health coverage through an employer or organization.

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Taking Inventory & Defining the Marital Estate

You can’t get your fair share of the marital estate unless you know what property is part of the marital estate.  You need to be able to identify and list all of your property or you will lose the opportunity to fight for it.

In order to make such identification, you must make a complete list of what you own.  The list should include all the property you and your partner have acquired during your marriage, property you brought into the marriage, and any separate property you have received or purchased after your separation.  A thorough list will include:

• All businesses you own in which you have an ownership interest
• All cars, trucks, and other motor vehicles
• All real estate you own individually or jointly
• All stocks, bonds, mutual funds, and certificates of deposits
• Annuities
• Any debts owed to you or your spouse
• Any joint accounts
• Any personal injury lawsuits
• Boats, airplanes, or recreational vehicles
• Collections
• Contents of any safe-deposit boxes
• Copyrights, royalties, or patents
• Furniture
• Inheritances
• Jewelry
• Life insurance policies
• Retirement or pension plans
• Stock options and employee stock ownership plans
• Valuable art, antiques, silver, or heirlooms

Beyond assets, you will also need to make a list of all debts you and your spouse may own.  Specifically, list the following:

1. All loans
2. All credit cards and the account numbers

Since Massachusetts is known as a “kitchen sink” or “all-property” state along with Connecticut, Indiana, Iowa, Kansas, Montana, New Hampshire, North Dakota, Oregon, South Dakota, Utah and Vermont, any and all property…whether owned prior to the marriage, jointly owned, or even acquired post-separation…is subject to division at divorce.

One of the places to begin your property division analysis is to focus on what was taken by one spouse at the onset of your separation.  If you plan on making an attempt to settle, generate a list of what you must have, what you are unsure about and what is unimportant to you.  Furthermore, what was taken from one of you without agreement?  What was agreed-upon?  What are the disputed items?

Once you have identified all of the property, it becomes time to divide the marital estate.  The premise upon which this begins is that marriage is a partnership.  When you start a partnership or a business, you usually draw up a partnership agreement detailing how the property will be split in the event of a dissolution of the partnership.  Marriages which the parties have drawn up prenuptial or postnuptial agreements often can be dissolved similar to the way business partnerships can.  Without a prenuptial or postnuptial agreement, however, the Massachusetts laws governing divorce will determine what you get. 

Logically, the next issue to address is how marital estate is divided.  In Massachusetts, the rules of equitable distribution are followed in an attempt to determine who gets what.

Massachusetts uses a concept called “equitable distribution” to divide marital assets.  The premise of equitable distribution is that marriage is an economic partnership.  Equitable distribution is intended to fairly distribute and allocate marital assets between you and your spouse.  While this theory has spawned tremendous complexity, litigation and problems, implementing the simple and fair-sounding concept is anything but.

The judge takes the complete list of assets and liabilities and divides the “marital pot” accordingly.  The goal is to put the parties back where they were before the marriage.  With a short term marriages, the starting point in any determination of the division of assets will be 50/50.  If one party wants more than 50 percent, they must convince the judge why this should be so.  There are few and minor exceptions.  The division of assets can be accomplished by selling property and dividing the proceeds or by division in kind employing set-offs of values one against another.

            The Massachusetts statute reads as follows:

M.G.L. Chapter 208, Section 34--Alimony or assignment of estate; determination of amount; health insurance.

Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and non vested benefits, rights and funds accrued during the marriage and which shall include, but not limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance. 

In determining the amount of alimony, if any, to be paid or in fixing the nature and value of the property, if any to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him at reasonable costs that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor's cost for health insurance coverage for the spouse.

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Sample Divorce Agreement Checklists

Given the plethora of issues that settlement agreements encompass, the attorneys at the Massachusetts Family Law Group utilize a checklist when writing each client’s separation agreement or parenting plan. 

While each case and set of issues is different, we review an outline of over 1,100 issues and clauses in preparing agreements that relate to custody, parenting plans, alimony, property division, estate rights and obligations, child support, college, attorney’s fees, liabilities, tax issues, health insurance and life insurance.

We prepare each agreement utilizing provisions commonly addressed in such agreements.  The checklist helps us to insure that we have not omitted or neglected to include any important provisions in drafting your agreement or stipulation.  While the outline is intended only as a guide, it does not include every conceivable issue or provision that should be included in your particular agreement.

The following examples illustrate the attention to detail to put on divorce agreements which relate to:

Child Support & Alimony Issues

1. When payment begins

2. Wage assignment, Direct Deposit or direct payment

3. How often payments are made

4. Amount of payments

5. When payments terminate

6. Life insurance in lieu of child support after death of payor

7. Allocation of alimony or child support payments for income tax purposes

8. Conditions and variations of support upon emancipation of children, entry into college, remarriage or cohabitation of either spouse

9. Disability or incapacitation of a party or child

10. Cost of living adjustments

11. Penalties for late payments

12. Whether limited by percentage of payor’s increased income

13. Retirement of either party

14. Increases/decreases of income of either party

15. Changes in residence(s)

16. Defining “material changes in circumstances”

17. Sale of real estate or other property

18. Change(s) in custody/residence

19. Death of a party or child

20. Attendance at private school or college by child

21. Age, child-care expense, health insurance increases/decreases or other increases/decreases according to Child Support Guidelines

22. Adjustments at set periods
    
23. Payment of principal, interest and/or taxes on real estate

24. Payment of other liabilities

25. Lump sum payment

26. Conveyance of real estate

27. Consider tax consequences, if any

28. Settlement of outstanding court orders or contempt judgments

29. Waivers of additional alimony and/or child support

30. Indemnifications if additional alimony or support imposed

31. Provisions in the event of discharge of obligations in bankruptcy

32. Security for payments for support 

Real Estate Issues

If the real estate is to be held:

1. Verification of outstanding mortgage or equity loan balances

2. Title search or rundown

3. Title defects or other problems

4. Appraisal

5. Agreement to hold real estate

6. How title to be held

7. Restriction from either conveying their interest to a third party

8. Provisions in the event of the death of either party

9. Agreement not to force sale or bring petition for partition

10. Agreement not to further encumber

11. Acknowledgment of existing liens

12. Satisfaction of past or future liens or encumbrances

13. Requirement to maintain mortgage insurance

14. Payment of principal, interest and taxes

15. Payment of repairs

16. Routine repairs

17. Capital improvements

18. Payment of other expenses

19. Payment of Utilities

20. Payment of Mortgages

21. Payment of Equity loans

22. Payment of homeowners insurance

23. Payment of condominium fees

24. Possession, use and occupancy

25. Indemnifications in the event of noncompliance

26. Right of spouse to enter the premises

27. Restrictions as to tenants, visitors, roommates

28. Spouse’s obligation to vacate

29. Spouse’s right to inspect premises

30. Distribution of rental payments or income

31. Capital gains/losses/depreciation

32. Income tax deduction for mortgage interest and real estate taxes

33. Requirement to refinance mortgage and remove spouse’s name

34. Waivers of interests in real property of the other

If the real estate is being sold:

1. Satisfaction of past liens and encumbrances

2.  When conveyance, sale or transfer to take place

3. Consideration for conveyance, sale or transfer

4. Acknowledgment of value of property for tax purposes

5. Security/escrow/distribution for receipt of proceeds

6. Cooperation in marketing property

7. Selection of broker

8. Moving expenses

9. Listing price, offers, adjustments to listing price

10. Release by one party from mortgages, liens or encumbrances if transfer to the other party

11. Tax consequences

12. What happens if capital gains tax never has to be paid

13. Payment of principal, interest, taxes, insurance, repairs, and utilities until sale

14. Penalties and indemnifications for failure to comply

15. Possession and use and occupancy of property until sale

16. Distribution of any rental income until sale

17. In the event of death of joint owner prior to sale

18. Obligation to cooperate with signing all documents to finalize listing and sale

19. Distribution of gross proceeds of sale

20. Broker’s commission

21. Appraisal costs

22. Mortgages, liens, encumbrances

23. Attorney’s fees, costs and expenses

24. Closing costs and adjustments

25. Credits due either or both parties

26. Payment of any designated bills or other expenses

27. Distribution of net proceeds

See more examples of issues and must-have phrases for parenting plans and separation agreements.