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FAQs

What is a QDRO?

A Qualified Domestic Relations Order (QDRO) is a court order which allows payouts from a retirement plan to a former spouse. The QDRO is necessary when dividing a retirement account pursuant to divorce proceedings due to the restrictions placed on pensions by Internal Revenue Code and Employee Retirement Income Security Act (ERISA). A QDRO is necessary to assure that a former spouse may receive benefits as an alternate payee, because without it the benefits may only be paid out to the individual employee who earned the benefits.

How is child support determined?

Prior to the institution of child support guidelines, child support determinations were entirely within the judge's purview, based on only two factors. The first factor was the level of ability for the obligated parent to pay. The second related to the needs of the child. This situation has changed dramatically over the years, with changes gaining momentum from federal legislation that required more uniformity among the states in exchange for federal child support funding.

Now all states have adopted child support guidelines that must be applied in divorce and custody cases in which minor children are involved. States have, for the most part, made a determination that every child has the right to the support of both parents while at the same time, parents' rights and needs are to be taken into consideration as well. Based on these principles, states have adopted formulas for determining what the level of child support should be. Generally, these guidelines are based on a percentage of the payor parent's gross income. Of late, more states are taking into account the income and standard of living of both parents, and the actual percentage of time that the children spend with each parent. Most states also provide that the formulas are presumed to result in a correct amount, however, states have also adopted procedures for deviating from the guidelines.

The State of Massachusetts has implemented new Child Support Guidelines in January of 2009. These guidelines provide the Court with more discretion in determining the appropriate child support amount than in the past. This means that it is even more important now to assure that the best information for your case is presented to the court.

What factors are considering in determining who obtains custody of the children?

The fact is that in 90% of cases where parents have decided they will not parent together, (joint legal and joint physical custody), the parents are able to come to an agreement regarding child custody and visitation arrangements. However, the remaining 10% of cases where a court is involved can be devastating for parents and children.

Because of the highly volatile nature of custody disputes it is important that the needs of the children are protected during this process. In general, all child custody decisions are to be based on "the best interests of the children." In many states, even in those cases where the parties have signed an agreement regarding custody and visitation, they are asked during the final proceedings whether they believe the custody and visitation arrangements are in the best interests of their children. The best interest of the children is a factor that is determined by the court in a contested custody case. The court frequently appoints an investigator or Guardian Ad Litem, G.A.L., to investigate the issues of custody and visitation. The impact of a GAL's recommendations can be determinative of the outcome of the case.

What does the court consider when deciding custody?

The courts use the best interest of the child test which can vary somewhat by jurisdiction. However, most courts consider the fitness of the parents, including each parent's ability to provide adequate food, clothing, shelter, care, education, and a positive living environment. The court will also consider the relationship between each parent and the child(ren), keeping in mind that every child is entitled to the love, nurture, advice, and training of both father and mother. Some additional factors are the following:

  • The child's age
  • The child's gender
  • The child's physical and mental health
  • The parents' physical and mental health
  • The parents' lifestyles
  • Any history of abuse
  • The emotional bonds between the parent and the child
  • The parent's ability to give the child guidance
  • The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
  • The child's routines, including home, school, community and religious
  • The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
  • If the child is above a certain age, the child's preference
  • Who has been the child's primary caretaker?

What is physical custody?

In almost all circumstances, the primary home of the family is considered community (or marital) property. When determining division of marital assets, the court considers many things. Keeping the home is viewed as tantamount to providing stability when children are involved and the parent awarded primary custody will most often remain in the home. If children are not involved, it is more likely that the home may be sold. However, adjustments in maintenance and alimony can be made to avoid selling it.

What is legal custody?

Legal custody refers to the decision-making authority for the child(ren) regarding education, religion, medical treatment, extracurricular activities, and all other parenting-related decisions that need to be made for the child(ren).

What is sole custody?

Sole or exclusive custody gives legal and custodial rights to one parent. The child lives with the custodial parent, and the custodial parent is given the power to determine the child's upbringing including his education, health care, and religious training.

What is joint custody?

The most common form of joint custody is joint legal custody with primary physical custody (the child lives with this parent) given to one parent and visitation rights are generally given to the non-custodial parent. Joint or shared custody gives both parents legal decision-making authority over the major decisions affecting the child. Joint legal custody gives each party the ability to have a voice relative to the religious, medical and educational decisions relating to the children.

Are Father's ever awarded custody of the children?

It is actually a falsehood that Fathers never obtain custody of their children and that Mothers always win. It has been shown that when Father's fight for custody of their children, they are actually more likely to obtain custody than Mothers.

How does domestic violence affect child custody?

A court determining child custody is looking for the best interests of the child. Evidence of domestic violence in the home or between the parents (or other family member by one of the parents) may be considered when making a custody determination. Even if the abuse was of a parent, partner or family member and not the child, it may be considered. The child may have witnessed the abuse, which may cause damage to the child, as well as a negative environment in which to live. Additionally, evidence that shows one parent to be abusive reflects negatively on that parent's ability to raise a child and his or her fitness as a parent

Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.

Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.

How is property divided?

All states provide for a more-or-less equitable, but not necessarily equal, division of marital property. Marital property includes the parties' incomes, acquired during the course of the marriage. Those states with community property laws set forth in more specific detail precisely what property is considered community property and thus, available for division, and, what property is considered separate property and thus, not available for division. Massachusetts is not a community property state. Massachusetts and others apply the same principles as those states that use the equitable division of property model.

For those unable to come up with a mutually agreed upon division of property, most state law provides a list of factors that courts consider in making a final division. Generally among these factors are:

  • Length of the marriage
  • Age and health of the spouses
  • Contribution of each spouse to the acquisition of property
  • Contribution of one spouse to the education or training of the other
  • Custodial provisions for children of the marriage
  • Whether either of the spouses will be awarded spousal support
  • Present and potential earning power of each spouse
  • The total economic circumstances of the spouses
  • The existence of any pre- or post-marital agreement between the parties.

How is alimony, or spousal support or maintenance determined?

All state divorce laws address the issue of whether, and for how long, one spouse shall be required to make support payments to the other spouse after termination of their marriage. In cases involving equitable division of property, one of the usual factors for division of property is whether one spouse will pay support to the other. On the other hand, when determining spousal support, or maintenance, as it is known in some states, one of the factors to be considered is the division of property. In Massachusetts a Judge is currently unable to limit the term of alimony, yet the parties can agree upon a term for alimony.

In the so-called equitable distribution property states, other factors to be considered are much the same as the factors to be considered by the court in the division of property, such as:

  • Length of the marriage
  • The extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse
  • The presence of young children in the home
  • Employment opportunities available to the spouse requesting support

Ironically enough, though spousal support may be a highly contentious issue in divorce, many couples are mutually able to make fair and reasonable support agreements as well. And, generally, at the end of a short-term marriage, in the absence of extraordinary circumstances, neither party is likely to end up with an award of spousal support.

How are debt and other liabilities and obligations divided?

Debt division is considered part of the property division process. In community property states, liabilities, like assets, that are brought into the marriage belong to the spouse who incurred them. In equitable distribution of property states, the debt, like the property, is divided equitably between the parties. If the debt is secured debt, the general rule is that the value of the encumbered asset is reduced by the amount of the debt in determining division. For instance, this often happens in the case of family cars. For many divorcing couples, each spouse has a vehicle, but one may be a paid-for clunker worth relatively little with no car payment. The other may be a late model car worth well over $10,000, but with a loan balance equal to its present value. Despite the fact that the vehicles may have very different gross values, the net value for them is equal.

A very common problem for couples in our current economy is that they have accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. This situation poses a complicated issue for debt division. In cases such as these, the advice of a financial consultant, or even a bankruptcy attorney, could be very helpful to the parties.

As with other property issues, if the parties cannot come to a fair and equitable division of debt on their own, state laws typically provide a rationale for courts to follow in making debt division decisions