Top Ten Common Myths in Massachusetts Family Law
1. I want “full custody” of the children.
In Massachusetts, shared legal custody is presumed by the courts unless there is evidence of misconduct by one party. Misconduct generally means abuse by one party or a total inability of the parties to communicate. Legal custody generally means the ability to obtain access to educational, medical records of the child and the ability to participate in unusual or extraordinary decisions concerning the child. Despite shared legal custody, physical custody is generally shared differently. When allocating physical time with the child (sometimes called “custody,” “visitation,” or “co-parenting”) the court considers each parent’s time available to be with the child. Work schedules, children’s schedules, and vacation schedules are some of the considerations. Only in rare circumstances will a parent be given sole physical custody with no contact from the other parent.
2. I bought it in “my name” so it’s mine.
Simply purchasing a car, house, boat or other real property under your name does not mean that you have 100% ownership. Names are important in matters of financing a home or a vehicle, as they are usually the source of credit for such purchases. However, just because the property title reads: “Jane Smith,” it does not necessarily mean that Jane Smith owns it outright. If Jane was married to Joe when she purchased the item, Joe is potentially entitled to 50% of the ownership of that item. So don’t assume that names = ownership. Massachusetts divides property between spouses under a concept of equitable division. This means that the Judge has power over all property of both parties and can allocate as the court finds fair and just. There are some exceptions to this the most notable is that retirement accounts held prior to the marriage are not subject to division based upon the value as of date of marriage. Increases in retirement accounts during the marriage are subject to division.
3. Because he’s not paying child support, I don’t have to let him see the kids.
Life is not fair. In a “fair” world, when Daddy is not paying child support, he should not get to see the children that he is not supporting. However, we do not live in a vigilante justice world. Only the judge gets to decide what ultimately should happen at visits. Two wrongs do not a right make: you cannot disregard the Court’s orders for visitation simply because the child support account is two months or even two years delinquent. It does not make sense why a parent who says that they love and care for their children would not want to provide resources for the children, but you must follow the law and provide access even when the other parent is delinquent in child support payments.
4. My friend got (fill in the blank)__________ in her divorce, so I want that too.
Every case is unique, with many facets and variations from the other so that you cannot compare apples and oranges. Results are different based on the judges, the parties, the experts, the children, the money (or lack thereof) and the attorneys. Just because your friend got alimony and had a factually similar situation does not necessarily mean that you will also be awarded alimony. Even if you have the same attorney, you need to understand that theories of recovery and positive/negative facts about the parties play equal roles as legal advocacy in the Courtroom. Given the same factors but two different cases, a result may differ based on even the slightest change. Just be open. Don’t pre-judge and be realistic about your results.
5. We have been “legally separated” in Massachusetts for years.
The concept of “legal separation” is usually a fabrication. In some countries just by muttering the words “I divorce you” three times, you are divorced. But in Massachusetts, if you don’t have an order from a Judge, then you aren’t separated. Massachusetts allows temporary orders during a divorce which most people consider legal separation. In addition, Massachusetts allows an action for separate support. This action is best for people who want to live separately from their spouse but still want to remain married. Typically, this is used by people who have religious objections to divorce. A separate support action takes as long as a divorce and usually costs as much as divorce. However, at the end, you are still married. If you then want to get divorced, you must file a new action and go through the entire process again.
6. If I don’t like the orders, I’ll just move with the kids back to my hometown in Alaska.
You can’t outrun the orders of a Court. In Massachusetts, once an action involving custody of children (divorce, domestic abuse, guardianship, etc) is filed, neither party can remove a child from the state without permission of the other parent or a judge. Removing a child from the state can result in criminal charges. The only way to relocate against this residency restriction is to file a modification with a compelling reason to move with the children such as once-in-a-lifetime education, family or work opportunity.
7. If she cheated on me, I should get everything.
While infidelity is grounds for divorce in Massachusetts, the courts dislike this cause of action and “encourage” parties to use a no-fault grounds instead. This does not mean that the court will totally ignore cheating. In a divorce, a judge must consider many factors in making a decision including the conduct of the parties during the marriage. This means that the court must consider all conduct of the parties during the entire marriage, good and bad. While adultery is conduct to be considered, it usually becomes such a small factor that it is seldom worth incurring significant fees to prove the point. While some may argue that adultery will get you a disproportionate share of the marital estate, it is unlikely that proof of cheating will result in a full-on wipeout of the cheater’s portion of the division of the estate. While the Code of Hammurabi may dictate an “eye for an eye,” we do not live in an era when the Court’s decisions are based purely on moral issues. Unless you are exposing the children to the alleged cheating in highly inappropriate situations – such as sexual activity in front of the children, calling lovers “mommy” or “daddy” or jeopardizing the health, safety or welfare of the children while cheating – infidelity has little bearing on issues in a divorce.
8. We’ll just call the kids at trial as witnesses and ask them what they think!
Putting children in the middle of litigation is only going to accomplish two things, and one will not be winning. First, you are going to really anger the judge by inserting your child in this mud-slinging contest over custody. Second, you are going to damage your children by asking them to be witnesses against their own parents. While it seems reasonable to ask the children to choose where they want to live, most kids will answer under coercion in exchange for an iPod, a pet, or even twenty dollars cash. While the law allows children over 14 to indicate their preference, the Judge is not bound by this preference. A child over 14 won’t be allowed to make the decision. In most cases, the preference of a child 14 or older will be voiced to a person selected by the court to interview the child and then report back to the judge. This person could be a probation officer of the court or a professional (psychologist or lawyer) selected as a “guardian ad litem” for that limited purpose. In rare instances a Judge may meet with a child.
9. If the kids don’t want to go to visitation with the other parent, then a) it is proof that he is a bad parent and b) I shouldn’t “make” them go.
Some kids would eat chocolate cake for every meal if given the choice. Does that mean that you should serve your five year-old chocolate cake for breakfast, lunch and dinner? Obviously not. So, take kids’ reactions to visitation with the other parent with a grain of salt. They may simply be echoing your negative comments about the other parent or they may be trying to please you by “siding” with you. You must make sure that your children attend all court-ordered visits. If you fail to obey a court order allowing visitation, you are in contempt of court. This would allow the other parent to bring a contempt action against you and seek sanctions from a Judge for your violation. These sanctions can include payment of money to the other party, allowing additional visitation to make up for the lost time and in rare cases, a judge can throw you in jail as a parent for preventing the other party from exercising access to the child. Long term violation of custody orders can even result in a change of physical custody to the other parent. If you believe that it is harmful to the children to spend time with the other parent, seek protection from a judge.
10. If you left the house due to domestic violence or other intolerable behavior without the children, that constitutes “abandonment.”
Victims of domestic violence who flee in the night with only the clothes on their back and “leave” their three kids at home have not abandoned their family. Desertion is a cause of action for divorce that is described as “utter desertion” for one year. This grounds for divorce relates to the spouse and not children. Custody of children is determined by the “best interests of the child.” Temporarily fleeing with the intent and follow-through of getting the children to safety is not abandonment. However, please be careful and note the risks of leaving without your children. If you choose to leave your children with an abusive spouse, this act undermines any argument later that the abuser should have supervised access or be denied access altogether. Also, leaving in such a manner means that your children are left in a dangerous living environment and no longer have you to defend them. If you and your children are at risk from an abuser, you should consider calling 9-1-1 to secure immediate physical protection and then seek legal representation to secure a protective order.