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Marriage and Divorce

Whether you’re already married, entering into a new marriage, ending one, or cohabitating with a significant other, there are many legal issues that might come up. These could involve children, assets, spousal support, and more.

The marriage and divorce life stage covers a time in your life when you are likely prime for change. Here you will find information about dealing with the legal issues that you might expect to face when your personal status is in flux.

Please review the list below and watch the videos, then call one of our family law attorneys with questions about your particular situation.

Cohabitation agreements


There is no common law marriage statute in Massachusetts, so unmarried couples who live together enjoy none of the rights and protections that their married counterparts do. Unless their partnership is defined through a legal contract such as a cohabitation agreement, the law is likely to classify them as strangers in the event that the relationship dissolves. A cohabitation agreement forces each party to carefully consider his/her intentions, obligations, and expectations during the relationship and upon its demise. Our legal team can advise you in this matter.



Collaborative


The goal of collaborative law is to achieve a settlement that best meets the specific needs of both parties without the underlying threat of contested litigation. This method of alternative dispute resolution is becoming especially popular in family law, where parties agree that they want to do what’s in the best interests of their children. Additional family issues that may be resolved through the collaborative process, including disputes between parents and the preparation of pre and post-marital contracts.

Although less popular, disputes in other areas of the law may also be resolved through the collaborative process. You may read more here.



Custody


There are two main types of custody: physical custody and legal. Both of these can be either shared between the parents or held solely by one parent. A growing number of parents are entering into physical custody battles. Sometimes a custody battle is necessary to protect the interest of a child. At other times, it is an attempt by a parent to increase visitation and increase their right to have a say in decisions that affect the child's welfare, education, and religion.

This area of law is extremely specialized. Some parents are unable to reach decisions about custody on their own and enlist the services of a guardian ad litem (GAL,) who conducts an investigation for the court and makes recommendations and conclusions about custody to the judge from a neutral vantage point. Other cases call for an attorney to be appointed to represent the child individually, making their wishes known to the judge.

In order to modify an existing custody determination or order, one must show a material change in circumstance enough to warrant a change in physical custody from one parent to another. Bacon Wilson attorneys can advise you on these issues.



Divorce


Whether a spouse is filing a joint petition or a complaint for divorce, the process can be one of the most stressful times in a person's life. In today's economy, the most common problem for divorcing spouses is how to take their previously shared income and create two separate households, complete with their own set of bills and expenses. Parents are worried about their children, what to do with the house, retirement accounts, and how they will live once the divorce is over. It is an extremely emotionally charged process, and not one a person should undertake alone and without counsel. The possibility for one spouse to lose some of their rights to children, equity, accounts, alimony, health insurance, and a host of other factors is just too great to embark upon without solid legal counsel.



Prenuptial (antenuptial) agreements


Also known as prenuptial agreements, antenuptial agreements are used in traditional pre-marital planning for couples. Simply put, they are contracts drafted to determine the property ownership of individuals prior to marriage and to insulate the premarital property from the spouse upon marriage. Parties can protect their assets at the time of marriage from becoming part of the marital asset pool and being distributed to their partner upon divorce or inherited at death. Bacon Wilson can help you develop a prenuptial agreement that suits your particular needs.



Remarriage estate planning


Whether entering into marriage for the first time or a subsequent marriage, a spouse should always revisit their existing estate plan or create a new one. Acknowledging a spouse by including them in your estate plan, or ratifying and confirming an antenuptial agreement, is critical to preserving your rights and maintaining control over designation of assets to your heirs. Bacon Wilson can assist you in estate planning matters.

With the divorce rate reaching 50%, remarriages require estate planning. The first spouse to die may wish to ensure that assets are available to or for the benefit of his or her children from a previous marriage. Perhaps a trust will need to be established for these children.

Alternatively, you may establish a trust for the benefit of your spouse, so that he or she will receive income and/or principal at the discretion of an independent trustee, with the remainder of the funds being distributed to children of your first marriage. In this way, your surviving spouse is protected during his or her lifetime, but the trust will ensure that the principal passes to the children of your first marriage, as opposed to leaving all assets to your surviving spouse, who could leave all assets to his or her own children upon his or her death. There may also be a need to establish a trust fund for your grandchildren's education or medical purposes.



Same-sex partnership and marriage


With various states adopting rules relative to civil unions, same-sex marriages, and other legal relationships, several significant issues relative to taxes arise. One primary issue may be the recognition of the relationship for income tax purposes that would allow a couple to file a joint state income tax return versus the federal distinction.

The Internal Revenue Service does not permit same-sex couples to file jointly even in cases where there is a legal marriage, such as in Massachusetts. The 1996 Federal Defense of Marriage Act limits the impact of civil unions under federal law. However estate, tax, and long-term care planning (Medicaid,) are significant issues when determining whether the individual filing a return or requesting an application for governmental assistance will be considered married or single.

In addition, with the advent of adoptions by same-sex couples and the subsequent dissolution of some relationships, life will certainly become more complicated and more planning will be necessary. All significant documents must be reviewed to ensure that all plans are in order and are coordinated with all necessary documents. These include wills, health care proxies, powers of attorney, prenuptial agreements, and any other legal documents, such as beneficiary designations. It may also be important to review the older generations' estate planning documents to ensure that both biological children and adopted children are included within their documents.

All couples should contemplate how to protect the assets they possess from becoming marital property at the time of marriage to their partner. Couples must remain aware that upon marriage all assets of an individual become assets of the couple and that, absent the existence of a written mutual agreement to the contrary, the distribution of marital property will be decided by the Commonwealth of Massachusetts' general laws in the instance of either divorce or death. Our legal team can advise same-sex couples in addressing the many issues that must be considered.



Separate support


Married couples choosing to separate but not formally file a divorce action encounter a unique set of circumstances. Reaching what seems to be an amicable agreement about who will pay the bills and how much child support to pay may leave the recipient spouse out in the cold.

Absent a court order, these agreements are unenforceable. Oftentimes, spouses who trust the other experience a further breakdown in the relationship over time, resentful feelings develop, parties begin to move on with their lives, and the obligor no longer feels that he/she should pay the original amount agreed upon. Since actions for "legal separations" typically are done in contemplation of divorce in order to avoid an additional filing fee, a party can file the divorce action, obtain some temporary relief via a court order that is enforceable by the powers of contempt, and then give him/herself some time to live with the arrangement. This provides an opportunity to decide how to proceed when emotions are not running so high. Bacon Wilson's experienced attorneys can handle your separation and divorce arrangements.



Visitation


Visitation, now called "parent time," is a very complex area of law. There are several types of visitation and an unlimited number of scenarios and schedules that can be developed and utilized when considering the needs and interests of the children, the appropriateness of one parent to spend overnights with a child, the work schedule of the parents, the location of residences, the ages of the children, and other factors. Visitation issues can arise for never-married parents, divorcing parents, after a specific incident has arisen, and during custody battles. Visitation agreements can also be modified at any time upon the showing of a material change in circumstance.