Divorce and Separation Getting a divorce is not easy. Attorney Leahy, through her roles as Of Counsel to Law Offices of Susannah Brown and Nagle & Joyce, works closely with clients and will guide you through the divorce process from beginning to conclusion. She will answer your questions and protect your rights during this time. Uncontested Divorces Pursuing an uncontested or Chapter 1A divorce is an option for couples who want to proceed with an amicable and cost effective divorce. If you and your spouse are able to communicate and agree on major issues such as custody, support and division of assets, then this course of action may be the best option for you. Negotiations and preparation of the relevant documents are completed without involvement of the court and often only one trip to the courthouse is required. This court appearance would be to submit the separation agreement to the Judge for approval and entry of a Judgment of Divorce Nisi, which then becomes a final judgment after the statutory period has elapsed. Contested Divorces Pursuing a contested or Chapter 1B divorce on the grounds of an irretrievable breakdown is the most common form of divorce filing in Massachusetts. Divorces can be fairly simple or very complex. Attorney Leahy, through her roles as Of Counsel to Law Offices of Susannah Brown and Nagle & Joyce, has years of experience in helping clients with their contested divorces. She will take the time to understand your concerns and to provide you with compassionate representation, while at the same time aggressively and efficiently pursuing your desired results.

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Representation in a contested divorce often involves: Filing a Complaint for Divorce; Motions for Temporary Orders (support and other issues); Establishment of Custody and Parenting Plans; Determination of Alimony or Spousal Support; Calculation and Determination of Child Support Pursuant to the Massachusetts Guidelines for Child Support, or deviations therefrom when appropriate; Marital Asset Division; Negotiation and Preparation of a Divorce Settlement Agreement or Separation Agreement; Litigation Procedures such as Requests for Production of Documents on both sides, Depositions (which involve oral questioning under oath as documented by a court approved stenographer), Court Appearances on contested matters at hearings before a Judge, and ultimately if a resolution cannot be achieved, a Trial before the Court. During your case, whether it is contested or not, amicable or highly contentious, we will ensure that you are kept apprised of each step in the legal process. We will aggressively and tenaciously represent you at trial, yet endeavor to determine whether a less costly, more efficient and favorable negotiated settlement is plausible. It is ultimately your decision, and you will be in charge, with the guidance of an experienced family law attorney, as to the choice between settlement or a trial.

Child Custody and Parenting Plans

Whether you are in the process of divorce, involved in a post divorce dispute, or have never been married, child custody and your parenting time (formerly referred to as visitation) is often the most difficult part of any family law issue. Attorney Leahy, as Of Counsel to Law Offices of Susannah L. Brown and Nagle & Joyce, will work to protect your rights and to help you achieve your custody and parenting plan goals while at the same time endeavoring to consider the paramount best interests of the children. She works with Mothers and Fathers and will compassionately listen to your needs and concerns to develop a parenting plan that works for you and your children. Whether it is a detailed, specific schedule or a more general, flexible plan, Attorney Leahy has the experience to get it done properly.

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Child Support and Alimony

Child Support Parents in Massachusetts are required to provide financial support for their children, whether they are divorced, separated, or have never been married. Cases involving child support can occur through: a divorce action; a paternity action; or various post-divorce or other actions, such as (1) a modification based on a material change in circumstances since entry of the original child support order (i.e., loss of a job or conversely, a significant increase in income), or (2) a contempt action where one party is delinquent in making, or fails to make support payments. Unless an agreement is reached otherwise, or a particular situation calls for deviation, child support is generally determined through consideration of the parties' incomes and application of the Massachusetts Child Support Guidelines.

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Alimony or Spousal Support Alimony is generally awarded in accordance with the Massachusetts Alimony Reform Act, Massachusetts General Laws Chapter 208, Sections 48-55, which became effective in 2012, and based on consideration of several factors, including: The length of the marriage; The financial needs of the receiving party; Contributions of the parties to the marital estate; The ages and health of the parties; and The financial ability of the payor spouse to provide alimony. Concerns such as the amount and duration of alimony are addressed in the aforementioned sections of the Mass. General Laws. In general, with the exception of very long term marriages, in excess of 20 years, alimony will not be permanent, and even then will generally end when the paying spouse reaches retirement age. Alimony may also be issued for different reasons in a shorter term marriage, such as to provide a spouse with an opportunity to obtain employment or to re-enter the work force. Whether you are entitled to child support or alimony or both is of great concern as you go through this process and is dependent upon your income and that of your spouse, the ages of your children, and the length of your marriage among other issues. Negotiating the interrelationship between Child Support and Alimony or Spousal Support can be complicated, and the knowledge and legal skills of your attorney in the presentation of your case, are of great import. For example, generally any income used in determining child support cannot be used for alimony, and the first $250,000.00 in income is used for calculating child support. However, when earnings exceed $250,000.00, alimony may be warranted on the income over $250,000.00. Other issues, however, such as tax reasons, because alimony is deductible by the payor and taxable to the recipient while child support is not, exist for allocating between child support and alimony. Similarly, depending on the duration of the marriage and the term of alimony, a recipient spouse although not entitled to alimony when receiving child support because of the amount of available income, may receive alimony upon emancipation of the children and cessation of child support. Attorney Leahy can help you negotiate the relationship between child support and alimony and your entitlement to one or the other or both. These are sensitive issues for both parties, as the recipient may have been out of the workforce and unable to support himself/herself, and his/her children, while the payor may be concerned about how to make these support payments while at the same time keeping himself/herself financially afloat. Attorney Leahy can help guide you through these and other concerns.

Division of Marital Assets

Massachusetts is an equitable property state, which means that property division is determined in an equitable, although not necessarily equal, manner. A judge has a great deal of discretion in deciding this issue, but is guided by several factors set forth in the Massachusetts laws governing distribution of the marital estate, including but not limited to the length or duration of the marriage, the conduct of the parties during the marriage, the contributions of the parties to the marital estate either financially through work or otherwise or as a homemaker, the age, health, station in life, occupation, amount and sources of income, vocational skills, employability, liabilities and needs of the parties. The assets subject to division include those in the marital estate, which generally involve those acquired during the marriage, including your home and other real estate, bank accounts, stocks, trusts, retirement assets such as 401ks, IRAs, 403bs, insurance policies, automobiles, boats, general home furnishings and other personal property. Your divorce may also involve more complicated issues such as high net worth, inheritances or a family run or spouse owned or run business. In the case of an inheritance, whether or not the inheritance is part of the marital estate subject to equitable division can be quite complicated and involves a consideration of whether it has been realized, that is actually received during the marriage and if so, whether it was woven into the fabric of the marriage, i.e. how the asset affected the couple's lifestyle and what it was used for. Pertinent considerations involve whether the asset was left in a separate savings account untouched, or used to pay for vacations, a second home, or college tuition. Consideration is also given to the parties' needs, and whether there are other assets in the marital estate that can be used to satisfy the needs of the non-inheriting spouse. A related issue involves how a future inheritance, or "expectancy" interest, is treated in dividing the marital assets. If the individuals from whom the inheritance is anticipated are young and relatively healthy, how they set up their estate plan, unless in the form of an irrevocable trust, will likely have little impact upon the division of assets. If, on the other hand, they are wealthy and elderly or in poor health, it may be a factor that is considered. In the case of a family owned business, a determination will need to be made regarding the value of the business, which often involves retention of a business valuation expert. Attorney Leahy can assist you in retaining experts when necessary, and in helping you to understand complex financial circumstances involved in a high net worth divorce, a spouse or family owned or run business, and a divorce involving inheritances by one or both spouses by providing you with understandable and persuasive explanations. She will provide you with experienced representation designed to ensure that all marital property and debt are disclosed, that assets are properly valued and that the property division is fair and in your best interest.

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Post Divorce Matters/Contempt and Modification

Contempt In the situation where one party violates the terms of the divorce judgment, it may be necessary to seek the court's assistance to rectify the situation and to require compliance with the terms of the separation agreement and judgment. This process is initiated with a complaint for contempt. Common areas where a contempt may be pursued concern child support, alimony or spousal support, parenting issues, property distribution and division of assets. Modification In many cases, issues will arise even years after a divorce, often involving issues regarding children as they have grown and their needs have changed, or financial issues where there is a change in income or, in the case of alimony or spousal support, of living conditions. Although a division of assets is generally final, a modification of a divorce judgment can be sought with respect to custody and support issues, including both child support and spousal support, in the face of a "material change of circumstances." For example, the need to relocate out of state with the children, the need for an increase or decrease in parenting time, or a significant change in income are just a few of the reasons that may necessitate a change in your original divorce judgment. Depending on the circumstances, these changes may be accomplished by agreement, or may necessitate filing a complaint for modification and proceeding through the Court.

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Prenuptial and Postnuptial Agreements

Prenuptial Agreements Prenuptial agreements, also known as “prenups” premarital agreements or antenuptial agreements, are generally obtained by people prior to getting married in order to protect their property or estates that they have acquired prior to the marriage, to protect children from prior marriages or relationships, to protect family or closely held businesses and/or to address potential alimony or other issues that may apply in the case of a divorce or death of a spouse. Property that is designated as separate property under a prenup is generally protected from equitable division under the statutes applicable in the case of a divorce. The idea of a prenuptial agreement is to allow parties to exercise their freedom of contract regarding what marital rights will apply in the case of divorce, or death of a party, rather than to defer to the applicable statutes. A prenup must be fair and reasonable at the time of execution, and requires that the parties are fully informed of each other’s income, assets, debts, business holdings and prior family ties or commitments. Additionally, in order for a prenup to be valid and enforceable under Massachusetts law, each party must be represented by independent counsel, and certain procedures must be followed, such as provision of the prenuptial agreement reasonably in advance of the wedding so as to provide sufficient time to review and fully consider the proposed agreement. The agreement must also be signed by each party free of duress, i.e. signed freely and willingly. It is also important to note that the agreement must not be so unfair as to be unconscionable at the time it is to be applied. For example, even if fair and reasonable at the time it was made, if the situation has changed such that at the time of application it would be unconscionable, then under what is termed the “second look doctrine” it still may be held invalid.

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Postnuptial Agreements Postnuptial agreements are agreements that are entered into between spouses while they are married. They are relatively newly accepted under Massachusetts law, as of 2010, when they were declared not to be automatically invalid as against public policy. Postnuptial agreements are agreements that are entered into between spouses, while married, in an effort to settle between them potential issues regarding division of their assets or support. Because of the fiduciary nature of the relationship between the parties, and the fact that unlike in the case of a prenuptial agreement they are not free to walk away if they do not like the terms of the agreement, they are more closely scrutinized. There must be full financial disclosure. The agreement must be fair and reasonable both at the time of execution and at the time of application. The parties must have the opportunity to obtain separate, independent counsel to review and explain the agreement. There must be no evidence that the agreement was entered into as a result of fraud or coercion. The parties must knowingly enter into the agreement such that they understand what is being signed and that they are waiving their rights to a share in the other’s assets and/or support under applicable statutes.

Mediation

Mediation in the family law context involves the use and guidance of an impartial, third person to assist couples in resolving a dispute, whether it is in the case of divorce, custody dispute, parenting issues, alimony, support, division of assets, or a post divorce issue such as a change in income potentially warranting a change in support, or a change in circumstances yielding the need for a revision of custody or the parenting plan. Attorney Leahy, as a mediator, can assist you in settling your disputes in one or more 3 way meetings with the parties. As a mediator, Attorney Leahy's goal is to have the parties reach an agreement where both sides have made a full financial disclosure, and both are willing to try to reach an agreement. As a mediator, Attorney Leahy cannot advise the parties; rather, she acts as a facilitator to assist the parties in finding the best solution for their circumstances. Divorce mediation will not work in highly charged, emotional cases where the parties cannot negotiate fully and fairly with one another. Mediation is more cost effective as the fees of the mediator are split between the parties, and the process is far quicker than litigation. Generally, the mediator will meet with the parties on one or more occasion, helping to work through the issues to reach an agreement. Often, in the mediation process, the parties will bring information from outside sources, such as real estate professionals or others, is then be reviewed during the mediation. Once an agreement is reached, the mediator will prepare an agreement which is then reviewed prior to submitting it to the court for approval. It is recommended that each party retain an attorney to review the agreement on their behalf. If this process is right for you, Attorney Leahy will be happy to assist you. Attorney Leahy works with clients throughout the South Shore of Massachusetts, including the towns of Cohasset, Pembroke, Westwood, Duxbury and beyond. She is a Certified Conciliator for the Plymouth County Bar Association Conciliation Program.

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