Frequently Asked Questions

Family Law

At the Worcester, Massachusetts Law Offices of Donahue, Rauscher & McGrail, we understand that thinking about divorce can be emotionally difficult. Sometimes having the correct information about the legal aspects of divorce and family law can be an enormous help. We have provided many commonly asked questions and answers for you:

 


What documents should I bring to the initial meeting with my attorney?

To make the most of your initial meeting with your attorney, it is best to bring the following documents with you:

  • Pay check stubs for a month's period for yourself (and spouse, if available)
  • Closing papers on your mortgage, a current mortgage statement and equity loan statement
  • Federal and state tax returns for the last three years, including W-2 statements
  • Statement from any pensions, 401K, 403(B), IRA, annuity accounts for yourself and spouse
  • Employee benefit handbook
  • Certified copy of your civil marriage certificate
  • Bank account information (savings, checking, CD)
  • Recent credit card statements from all credit cards
  • Life insurance policy information (amount of insurance, policy number, insured, beneficiaries)
  • Information on children's accounts, Uniform Transfer to Minor accounts, 529 Plans
  • If you were previously divorced, bring a copy of the court judgment, separation agreement, and orders

If you or your spouse own your own business or are self-employed, your attorney will discuss what other documents you need to bring with you.

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What is child support?

Child support is simply the parents' obligation to provide for their children. The amount of child support one pays or receives is a function of the economic resources of the parents. The income of both parents is taken into account in the determination of a child support order. Child support guidelines apply in divorce cases, paternity cases, and guardianship of a minor case. The child support guidelines are applied in all child support cases, but in limited circumstances, the guidelines may be rebutted. The child support guidelines are revised by the court every three years.

In calculating the amount of child support, adjustments are made to the parties' income based upon childcare needed to maintain employment, the cost of health insurance, the cost of dental insurance and vision insurance. It is important to know what the costs of these items are before attempting to calculate a child support amount.

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What is a modification?

Modifications are a change in the court's prior judgment. Modifications usually concern child support, alimony, child custody, removal of a child from the state, visitation, and college expenses or other matters.

The essential element in a modification complaint is a material change in circumstances since the prior judgment. A typical material change of circumstances is the loss of a job, receiving a large sum of money, and remarriage. Frequently, a child is the source of the change in circumstances, such as, when a mature child desires to live with the other parent because the custodial parent is moving.

The court's power to modify a prior judgment is limited. In a divorce, for example, the parties' property division is not subject to further modification. The decision to file a modification demands the weighing and balancing of numerous factors with your attorney.

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What are the ramifications of counseling?

Divorce is stressful. Mental health experts list divorce as one of the most stressful events in life. Divorce ranks with other life-changing events such as the death of a loved one and loss of employment. Many clients use mental health counselors during the divorce to help them cope with the breakup of their family. Counselors can give one strategies to deal with the stress of divorce. A counselor may also help separate the emotional issues from the financial issues and improve your judgment regarding your divorce. Many health plans provide counseling as part of their insurance coverage.

Some clients fear that by seeing a psychotherapist may be perceived negatively by the judge or their peers. Conversations with your psychotherapist are privileged. In general, for the court to allow testimony from a licensed psychotherapist, the court must find that it is more important to the interests of justice that the communication between you and your psychotherapist be disclosed than the relationship between you and your therapist be protected; or, that it is more important to the welfare of a child that the communication be disclosed.

While the specific facts of your case will impact the balancing test, many clients find that a qualified psychotherapist is a source of needed help in a divorce. If you have questions or reservations about seeing a psychotherapist, contact your attorney to discuss the matter.

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What is a Qualified Domestic Relations Order?

The Qualified Domestic Relations Order (QDRO) allows for a court to divide a party's pension in a divorce. A QDRO is commonly used when the parties have insufficient money to allocate pension assets equitably at the time of the divorce. The QDRO allows for the other spouse to receive payments from the pension administrator directly.

Massachusetts public employees are not covered by the federal law which governs QDROs. Teachers and state and municipal employees are covered by the state's laws. A Domestic Relations Order under state law is the proper vehicle for dividing state and municipal pensions.

A military pension is another asset which is subject to equitable division in a divorce, provided the parties were married for 10 years during which the military spouse was performing military service creditable towards his or her retirement. There are several differences between a military pension and QDRO. However, the court may consider the fact that the other spouse has a claim for a military pension when dividing the marital assets, even though the retirement itself is not subject to a payment order from the military pension administrator.

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What is an abuse prevention order?

Sometimes referred to as a restraining order or a 209A, an abuse prevention order is a civil restraining order. Violation of the order is a criminal offense; the district attorney's office prosecutes violations of restraining orders.

The Complaint for Protection from Abuse form is available at the probate and family court, district court, and superior court. A judge hears the complaint for an Abuse Prevention Order. This is an important hearing as the court may;

  • Order the abuser to vacate the home and/or have no further contact with the plaintiff
  • Order temporary support for the plaintiff
  • Award temporary custody of the minor children
  • Order monetary compensation to be paid by the abuser for loss of earnings, out-of-pocket expenses, and reasonable attorney fees
  • Attendance at a treatment program for batterers

If you receive a restraining order, you should keep a copy at home, at work, and with you at all times. You should carry a cell phone with you for emergencies and use your telephone answering machine to screen the calls.

If you are at a court hearing and the abuser is present, stay as far away from him/her as possible. Bring a friend with you to court to provide comfort and support.

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What are temporary orders?

Since most divorces take several months or more, the parties can apply to the court for temporary orders. The court's ruling, or the parties' agreement, on temporary orders is important as it provides the parties with the ground rules until the divorce case is decided. The subjects covered under temporary orders are typically:

  • Custody
  • Parenting schedules
  • Responsibility for payments of credit cards, car loans, etc.
  • Filing of tax returns
  • Support
  • Occupation of the marital residence
  • Uninsured medical and dental expenses
  • Other matters which need to be addressed immediately

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How Does Health Insurance  Work for Divorced Spouses

Continuation of health insurance after a divorce is a factor, which cannot be overlooked.  Under normal circumstances, the court will order the party, who has family health insurance coverage to continue that coverage for the benefit of the spouse and children.  The cost of providing health insurance in cases where there are children is taken into consideration in calculating the child support guidelines.  In an alimony situation, if the party paying all alimony has insurance coverage available to him the court must include in the support order a requirement that the person paying child support do one of the following:

  1. Exercise the option for additional coverage;
  2. Obtain coverage for the spouse;
  3. Reimburse the spouse for the cost of health insurance.

In that situation the order alimony will not be reduced because the person paying alimony also pays for health insurance coverage.

Its very important you and your attorney investigate fully the matter of health insurance because in some instances an employer is not required to offer health insurance to a spouse once the divorce becomes absolute.

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How Are Marital Assets Divided and Alimony Awarded in Connection with Divorce

In considering how to divide the marital estate and whether or not to award alimony and if so how much, the court must consider the following factors:

  1. Length of the marriage;
  2. Conduct of the parties;
  3. Age of the parties;
  4. Health of the parties;
  5. Standard of living of the parties;
  6. Occupation of the parties;
  7. Amount and sources of income;
  8. Vocational skills;
  9. Employability;
  10. Value of the marital estate;
  11. Amount of liability;
  12. Needs of the parties;
  13. The opportunity for future acquisition of income and assets; and
  14. The contribution of each party toward the acquisition and preservation of the marital estate.

In considering the issue of contribution, the court will look at the financial contribution of the parties and the contribution as a caretaker of the children and homemaker.

There is no formula in the General Laws for setting the amount of alimony.  In general, the longer the marriage, the more emphasis court places on these factors both in determining how to divide the marital estate and also how to award alimony if alimony is an issue.  In general, if a non-custodial parent is paying maximum child support in accordance with the guidelines, then alimony would probably not be an issue if the non-custodial parent is not a high wage earner. ($200,000.00 per year or more)  However, in cases where the custodial parent stays at home to raise the family and does not have a career, alimony may be an issue after the children are emancipated.  Alimony terminates upon the death or marriage of the recipient and in most instances upon the death of the person paying alimony.  There are instances where a claim for alimony may be made against an estate.  For example, if the person paying alimony was ordered to provide life insurance in order to secure the payment of alimony and does not do so then upon death, the recipient may make a claim against the estate.

Your attorney will discuss in detail all of these factors in preparing your case either for settlement or for trial.

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Contact the Law Offices of Donahue, Rauscher & McGrail, PC

Call the Law Offices of Donahue, Rauscher & McGrail, PC at 508 757-7737 or contact us online today.

Donahue, Rauscher & McGrail, P.C. 23 Harvard Street Worcester, MA 01609 Phone: (508) 757-7737 Fax: (508) 751-5777