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Can I Keep It?

Thank you to everyone for your amazing feedback on the last newsletter! Since it was sent last week, I have received a handful of questions about how inheritances are divided during a divorce.

Inheritances may be subject to division if they are received either before or during the marriage unless there are terms in a pre-nuptial agreement specific to this situation. In my experience, this is often one of the most emotionally charged areas of contention, slightly behind child custody. Not surprisingly, the person who received the inheritance typically feels entitled to keep the entire thing; on the other side, their spouse often feels entitled to at least some portion of the inheritance.

Generally speaking, Judges consider when the money was inherited and how it was used during the marriage. In doing so, the Court looks at the length of the marriage, when the inheritance was received, whether it was used to maintain a standard of living or kept separate, and the value of the funds, relative to the other marital assets.

If there is an expectation that one person will inherit something, the spouse has no right to division of future inheritance. In most cases, a person cannot rely upon an inheritance until the Grantor or Trustee actually dies. However, the judge may consider the expected inheritance in determining the future needs of the spouse, which could affect the settlement that the spouse receives; however, the impact of a potential future inheritance usually small, because, again, there is not typically an irrevocable document in existence.

Some very simple, contrasting examples to demonstrate how a Court might analyze whether an inheritance should be divided:
1. A woman inherits $10,000 from her grandmother just before she is married. She immediately uses that money towards the purchase of a house and lives in that home with her husband. Fifteen years later, they file for divorce. In this case, she is unlikely to keep the full value of her inheritance.
2. A woman inherits the $10,000 from her grandmother just after she is married. She never co-mingles the money and doesn’t use it towards expenses or luxuries during the marriage. They file for divorce six months after their wedding. In this case, she is more likely to retain the full value of her inheritance.
3. A woman has knowledge that her grandmother has made a $10,000.00 gift for her in her Last Will and Testament. Fortunately for her, her grandmother is still alive. If she gets a divorce now, her spouse no right to any portion of the inheritance.

As always, if you have any questions regarding this topic, or any other, please feel free to contact me for more information.

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I Want It NOW

Growing up, Ronald Dahl’s Charlie and the Chocolate Factory was one of my favorite books. Charlie was, by far, my favorite character, because of his innocence and wonder; however, Veruca Salt was always the most interesting. Do you remember all of her infamous “I Want It Now” demands?

Some of my potential divorce clients remind me of Veruca Salt. During our consultation, those clients will tell me they want and deserve everything: all equity in the house(s), the entire 401k, and, yes, even the salt shaker.

Very rarely will one party receive all of the marital assets in a divorce settlement.  Similarly, Massachusetts is not a community property state; therefore, we do not automatically divide marital assets equally.

Massachusetts Probate and Family Courts apply M.G.L. Chapter 208, §34 to determine how marital assets should be divided. More often than not, division of marital assets is as close to equal as possible. When determining how to divide assets, Judges give varying weight to each of the following factors, but all are considered: 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;  and Contributions of Husband and Wife as homemaker.

For someone who is truly angry and wants everything, this can be a tough reality; however, I find that most clients would rather hear the truth sooner than later. Unrealistic expectations only lead to disappointed clients.

Only because you read this entire article, I will share a secret with you: the Oompa Loompa are now my favorite. I love their honesty and integrity (but also because they remind me of a close friend). Now that I have shared that, I dare you to get their song out of your head as you go on with your day.

 

North Attleboro Plainville Wrentham Bristol Norfolk Real estate child support custody divorce real estate homestead title insurance Attleboro lawyer legal law office modification contempt estate plan planning will power of attorney old republic title company living will Norton Franklin Bellingham Canton Easton Marin School Asso

North Attleboro Plainville Wrentham Bristol Norfolk Real estate child support custody divorce real estate homestead title insurance Attleboro lawyer legal law office modification contempt estate plan planning will power of attorney old republic title company living will Norton Franklin Bellingham Canton Easton Marin School Association Representative Town Meeting Junior League of Boston Contractor Disputes Personal Injury Landlord Tenant  Deed paternity South Attleboro Cub Scout pack 65

ciation Representative Town Meeting Junior League of Boston Contractor Disputes Personal Injury Landlord Tenant  Deed paternity South Attleboro Cub Scout pack 65

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Yours, Mine, and Ours

I was having dinner with friends a few weeks back and, as it always does, the conversation turned to prenuptials agreements.  Everyone loves talking about what they get for a settlement if they divorce. One of the wives mused about getting their private island as part of her settlement. Her husband stated that he was keeping their personal plane and their four beach houses. Okay, this didn’t actually happen. More than likely, someone actually told a joke with a prenuptial as the punch line.
Prenuptials are actually much more common than you might think. Some changes in society have likely made them more popular for average, middle class couples, who don’t have private islands, multiple summer homes, or personal planes:
1. Women have more education, better jobs, and more money entering marriage;
2. People are getting married later in life, so they are more likely to have accumulated some personal assets or, potentially, debt; and
3. The prominence of children from previous marriages and relationships.
When does it make sense to have a prenuptial agreement? Any time that you have something valuable in your life, whether it be children, house, business, or other assets.
A Prenuptial Agreement is merely a contract that couples sign before they are married and is enforced if you get a divorce (although some terms included can direct behavior during marriage).  Couples who have a prenuptial agreement and later divorce typically have quicker and less expensive divorces, because the terms of separation are already defined and known.
To be valid and enforceable, a prenuptial must be conscionable and made after full financial disclosure by both parties DeMatteo v. DeMatteo, 436 Mass. 18 (2002); however, the court may determine that even if a prenuptual agreement was fair when executed,  a “second look” at the agreement might make it unenforceable at the time of divorce  Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015). For that reason, it is even more important to be accurate when making financial disclosures prior to making the agreement and to satisfy all other criteria which would make it valid and enforceable.
The greatest things about prenuptials is that they force a couple to discuss some important issues before they get married. Too many people really do not know much about their future spouse’s finances before they get married. They may know that the person drives an expensive, shiny car and what they do for work, but not much else. Was the car paid for in cash or with a loan? Can the spouse even afford that car without sacrificing other, more essential, things? How much does the future spouse earn annually? Does that person have unearned income also? Is there an expectation of future inheritance? Does that person have debt and how significant is it? Once those discussions are over, couples actually find them selves closer and are more prepared for a honest, successful marriage.

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Truth.

Truth.

I recently read Good to Great (2001) by Jim Collins.  Although the book is geared towards corporate executives, the messages can be carried into any career or life, in general. Some of the highlights are as follows:
1.” Great leaders combine tremendous personal humility with unwavering professional resolve;”
2.  “Companies that are trying to become great must force themselves to confront brutal facts and difficult realities in order to address them;” and
3. “The transformation from good to great does not come in a dramatic swoop or sudden action.”

I recently participated in a creative writing class. During that class, we had a discussion about humility as an essential aspect of being genuine.  Whether in business or in every day life, we tend to trust people who can admit when they are wrong or need assistance, because we, ourselves, are not perfect or indestructible.  During the class, I couldn’t help but also reflect on the book.

When I first started to practice law in December, 2004, I was over confident. While in law school, I had worked for as a student district attorney and for some amazing attorneys; of course, I thought that I knew everything that there is to know about practicing.

On the very first day that my practice was open, I received a referral from a close law school friend. Opposing counsel on the case was one of the most prominent attorneys in Boston, who (literally) started practicing before I was born. Within a month, I felt out of my league; while my experience was great, it was not that of a seasoned attorney. The brutal truth of admitting to myself that I had failed at being instantly brilliant was painful. Only once I admitted that I was lost could I truly ask for help and grow in to who I am eleven years later.

Sometimes the truth is painful, but it can be the gateway from good to great.

**This newsletter is dedicated to Lisa Hutchison, who taught the creative writing seminar and colleagues who never make me feel foolish.**

 

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First Comes Love, but are you married?

I know a couple in their early 90’s. For over 30 years, they have identified themselves to friends, family, and the community as “Mr. & Mrs.*”

Mr. & Mrs. recently asked me to help them with the sale of their home. When I looked at their current Deed, there were two names listed, but they did not share a last name. Of course, I inquired as to whether Mrs. had changed her name at some point, including after the house was purchased. Mrs. told me that she had never changed her name legally after they were married.

After some additional inquiry, Mr. & Mrs. stated to me that they are common law spouses. They told me that they were wed in a ceremony performed by a friend, who was not an actual, registered officiant, and never obtained a marriage license. I found myself in the unfortunate position of needing to explain to them that while they are a loving, committed couple, Mr. & Mrs. are not actually married within the Commonwealth of Massachusetts.

Mr. & Mrs. do not have any of the legal protections offered by the Commonwealth for married couples. Sadly, they both appeared surprised by and unprepared to handle the reality of their prior decisions.

This situation is not all that uncommon, especially among individuals who want to preserve existing entitlements or pension benefits; however, there is a way to protect yourself without getting married: Massachusetts recognizes Cohabitation Agreements, which outline how legal, personal, and financial matters will be handled if the couple breaks up or a partner dies. Similarly, some basic estate planning may also resolve some of the legal issues that committed couples, who are not married, face.

As always, please feel free to contact me if you have any questions about this or anything else.
 * While this article refers to “Mr. & Mrs.,” the term is being used generically to include both the traditional marriage arrangements, as well as “Mr. & Mr.” and “Mrs. & Mrs.”

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