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National Holidays

 

 

 

 

There are some days on the calendar that we all recognize as holidays (even if we don’t celebrate them): December 25th,  October 31st and July 4th; however, there many obscure “National Days” of which you are probably not aware. For instance, did you know that May 19th in National Devil’s Food Cake Day or that August 5th is National Underwear day? Chances are good that you have no idea that the first Monday after New Year’s, when everyone returns to work, is considered by many people to be National Divorce Day.

Divorce Day has become a “thing” over the last couple of decades. Nobody is truly sure what it is about that date that makes it such an attractive time to call an attorney to start the divorce process.  It could be seasonal depression, conflict over the holidays, or just wanting to follow a different path in the new year. While nobody gets married hoping that their marriage ends in divorce, it is, unfortunately, a reality for approximately half of the population in any given year.

Divorce is not always terrible ending. We always tell people that divorce is a legal transaction that involves a “math problem, (aka figuring out who gets what)” and making sure that the children are in the best environment possible; when parties can focus on those two things, not the emotion and drama, everyone is happier.

Some of our favorite cases are divorces because it can bring out the best in people. We see people work together, focus on their children, and follow the path towards an alternative happy ending.  One of our favorite moments ever occurred right after one couple had their Separation Agreement approved by the judge as they hugged and walked out arm in arm. We often see parents make plans to take their children out for dinner together the night that they are divorced to remind their children that they are still a family. While this is not necessarily the norm, it is certainly the ideal.

What else is ideal? Celebrating April 14th as National Ex-Spouse Day.

Whatever winter holidays you chose to celebrate, we wish you a very happy holiday season. As always, please visit our website www.wjslegal.com or call us at (508)319-1529 for more information.

 

 

 

 

 

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Why an Owner’s Title Policy?

Great information from Old Republic Title Group, who we proudly represent:

Mr. Seller and (presumably) Mrs. Seller arrived at settlement to execute the deed to Mr. & Mrs. Buyer. A while later, the real Mrs. Seller’s attorney mails a letter to Mr. & Mrs. Buyer claiming the property still belongs to Mrs. Seller, who had been separated at the time of the purported sale and unaware of the perfidy of Mr. Seller.

Joe Frazier, after his annuity income stops, decides your property is still his, 14 years after he signed a deed. Sounds crazy, but he still sues you and you need a good title attorney, NOW.

Your legal description recites a boundary along a roadway. Your seller says he uses the dirt roadway to get out to the main roadway. The searcher just assumes there is legal access to a public road because of the way the legal description reads. When the property owner over which you must travel to reach the main highway sells, the new owner decides to block off the dirt road. Now you are landlocked. You may or may not be able to require this neighbor to open the roadway again without purchasing an easement from him, but you have to go to court and pay a lawyer and the court expenses.

A new regime takes over the local municipal government determined to save the taxpayer’s money and get re-elected again and again. The “newly elected” tackle their new job with vigor that would surpass the “white tornado” in that old commercial for a newer, stronger, more disinfectant cleaner. They are determined to “clean house.” To their delight they discover that their campaign rhetoric was absolutely true. The last members of the municipal board had never gone after the scofflaws of the township to get them to pay their water/sewer line tap-in fees, or their street improvement assessments, or any of the other myriad township assessments and fees imposed on the upstanding property owners as a privilege to live in “Camelot” township. Now is the time to collect on the old municipal liens. But now you are the owner of the property. It was your seller who was the “scofflaw.”

When you purchased your property, the settlement clerk paid off the seller’s mortgages. You thought your troubles were over. Later when you went to refinance your mortgage for a lower interest rate, the searcher finds old open mortgages still against your property. The settlement clerk had obtained a letter of indemnification from the seller’s title insurance underwriter (because the seller had an Owner’s Title Policy) in order to insure over these old mortgages. Later the clerk failed, for whatever reason, to obtain releases from the mortgage companies to clear the courthouse records. If you did not purchase an Owner’s Title Policy insuring you against such liens, you cannot obtain a letter of indemnification, as did the seller when you purchased, because you did not purchase the Owner’s Title Policy to protect yourself.

However, you were advised by a trusted and competent advisor that you do not need an owner’s title policy. “Once they search the title to protect the lender, you know your chain is good. So why pay the extra money for an owner’s policy.” Good advice? Not when that claim comes in.

A Lender’s Title Policy insures only the lender. And the Lender’s policy insures that the mortgage is a first lien. The lender, of course, would be concerned if you lost your title to the property but only when you lost your title to the property. The lender would be concerned if they found out there is a judgment or municipal lien ahead of their mortgage in lien priority; but only when the mortgage is in foreclosure. The lender gets concerned once the tragedy has already happened. An owner is concerned before it gets that far. And, without an Owner’s Policy, you are not covered and you must pay someone else’s debt.

Because the title policy is an indemnity contract for losses, the mortgage company must suffer a loss before they actually have a claim under the Lender’s Title Policy. Therefore, they must proceed to foreclosure, sell the property and obtain less than the debt due on the loan. By that time the owner has been ejected from the property.

For just a little more money over the lender’s-only policy you can get an Owner’s and Lender’s policy combination that protects your ownership interest. In addition, should you die, the ownership interests of you heirs or devisees are also protected under this same policy. You pay a premium only once and the policy continues in force until you sell to a third party. Don’t let anyone convince you that the lenders coverage accrues to your benefit.

Reprinted from the December 1999 issue of the Old Republic National Title Insurance Company newsletter, Title Talk, Pennsylvania Edition

For more information or with specific questions, please feel free to contact us at (508)319-1529.

 

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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.

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

 

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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.

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

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