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Month: November 2016
Considering a High Asset Divorce in Massachusetts?
The Challenges of High Asset Divorce
Even though many divorces can be challenging to resolve, they are often particularly contentious when the parties are attempting to get their “fair share” of substantial assets. A high asset divorce in Massachusetts can quickly grow quite complex as various pieces of property need to not only be assessed in value but divided equitably between the splitting spouses.
And, while such disputes can give birth to a wide variety of financial issues – such as questions of alimony or division high-value assets such as homes, retirement accounts and businesses – they need to be settled before the parties can move on with their lives.
Property Division Laws
When divorcing couples are unable to reach a property division agreement, the court must determine how assets are apportioned. In Massachusetts, property and assets are typically divided equitably during divorce, which is not necessarily equally – meaning Massachusetts courts will apportion marital assets based upon what will yield a fair and reasonable result, as opposed to an automatic 50/50 split.
The Massachusetts property division statute also dictates that a court may “assign to either [party] all or any part of the estate of the other.” Essentially, this means that courts are free to divide any property owned by the couple, regardless of whether it was acquired before the marriage (separate property) or during the marriage (marital property). This is particularly important given the fact that most states limit post-divorce property division to marital assets alone. In Massachusetts, courts will often assign separate property to the spouse that owned it originally, though they are not required to do so.
While Massachusetts divorce courts generally have great discretion when dividing assets, there are statutorily created factors that must be considered when making these determinations, including:
- The length of the marriage
- The conduct of each party during the marriage
- The age, occupation, income, health, estate, vocational skills and employability of each party
- The needs and liabilities of each party
- The opportunity of each party for future acquisition of capital assets and income
What Happens to the House?
Often, one of the biggest assets to be divided during divorce is the marital home, especially if the spouses have been married for years and accumulated significant equity in the house.
There are many options available to parties, not necessarily limited to selling the home and splitting the profits. Other considerations – such as declining home prices or the existence of school-aged children – may actually give rise to more advantageous, alternatives. For instance, rather than simply selling a home and splitting the proceeds, Massachusetts courts have ordered:
- One spouse to convey his or her interest in the home to the other spouse, on the condition that the second spouse make a payment to the conveying spouse representing his or her equitable share
- One spouse to convey his or her interests in the home to the other spouse, with the conveying spouse being compensated with an award or other assets or property
- That the home be awarded to the spouse with custody of the minor children on the condition that the house be sold and the profits divided once the children all graduate high school
- That the right to occupy the home be awarded to one spouse until a predetermined future date, or until the happening of a specific event, at which time the home will be sold and the proceeds divided
Retirement Accounts & Businesses are Subject to Division
A high asset divorce may include substantial assets the spouses have spent years building, including retirement accounts and/or businesses. Under Massachusetts law, retirement funds – such as pensions – as well as ownership interests in businesses are assets that can be divided during divorce. But, before they can be divided equitably, they must first be valued.
While the valuation process can be simple when dealing with retirement funds – with several exceptions – or even stock in a publicly traded company, it is typically more complicated when valuing on a closely-held company owned by one of the spouses. Indeed, given the complex nature of valuing a closely held company, experts are often employed to determine market value.
Alimony Law
Division of accumulated assets is not the only concern for couples going through a high asset divorce in Massachusetts. For many, the main financial issue to be resolved is the matter of alimony, which is sometimes referred to as spousal maintenance.
The law in Massachusetts regarding alimony changed significantly in 2012. There are now four different types of alimony payments that can be ordered by Massachusetts courts: general, rehabilitative, reimbursement and transitional. Given that each type serves a distinct purpose, courts will typically examine several factors when determining which type to order – if any – in addition to the amount and duration. These factors include, but are not limited to:
- Length of the marriage
- Age of the parties
- Health of the parties
- Income
- Employment, or employability, of the parties
Essential Legal Guidance
A high asset divorce can be particularly problematic for splitting spouses. Not only can they involve complex asset division, but in some instances, one of the parties may attempt to hide assets. This is why it is imperative to consult with an experienced divorce lawyer if you are contemplating divorce and believe it may become contentious. A skilled family law attorney will help find all marital assets and assist in ensuring that your rights are protected during the process.
Contact Us
Please contact our firm at 617-523-4300 to schedule an initial consultation. One of our attorneys is a bilingual native speaker in both Spanish and English, and another is fluent in French.
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Tax-Dollar Priorities: Mass Incarceration or Education?
Spending on Mass Incarceration Far Exceeds Education Outlays
There is an oft-repeated adage that budgets are moral documents, reflecting the values of the people who created them. What does it say, then, that the United States continues to spend more and more money on mass incarceration, locking up its citizens while at the same time cutting funding for higher education? Are Americans more criminal than people elsewhere, or are our priorities and policies badly skewed?
In 1980, approximately 220 of every 100,000 people in the United States were incarcerated. Now, the U.S. incarceration rate is a staggering 716 per 100,000 residents, many times higher than any other country in the world. While we represents about 4.4 percent of the world’s population, the United States incarcerates around 22 percent of the world’s prisoners. In July 2016, the U.S. Department of Education (DOE) reported that mass incarceration rates have increased despite large decreases in crime rates of more than 50 percent between 1980 and 2014.
According to the Bureau of Justice Statistics, the number of people incarcerated in state and local facilities more than quadrupled, rising from about 490,000 in 1980 to over 2 million in 2014, due in part to the enactment of additional, often lengthy mandatory minimum sentence laws. Approximately one-quarter of these inmates are imprisoned on non-violent drug charges.
During the same period, state spending for public higher education was cut by nearly one-third nationwide. Massachusetts has not been exempt from this trend. Although Massachusetts (-2%) and New Hampshire (-1%) were the only two states in which the rate of increase in per capita corrections spending did not outpace the rate of increase in per-pupil education spending, from 1979-80 to 2012–13 in Massachusetts state and local corrections expenditures rose 63% compared to public PK–12 expenditures. Massachusetts is one of 11 states that spends more on its prison systems than public universities.
Incarceration Brings Life-Long Consequences
Of course, all this prison spending does more than just impact the cost of a public college. It puts a whole population of people at risk of being dependent on the system – or even worse, shuttling in and out of prison – for their entire life. The DOE report notes that “Investments in early childhood education can lead to reduced incarceration later in life, in part through improving educational attainment.”
Going to prison makes it extremely difficult to later gain an economic foothold. According to research by the education group Public Administration, approximately 60 percent of ex-convicts remain unemployed a year after release. By contrast, the unemployment rate among recent college graduates is around 12 percent. The disparity does not stop there: ex-convicts can expect a median income of about $22,000 per year, while the median annual income for college graduates is approximately $55,000.
Many employers simply refuse to hire people who have a criminal conviction, let alone someone who spent time in prison. While employers in Massachusetts generally may not include a question about convictions on an application, beyond that stage they may access criminal record information, including cases continued without a finding but not yet dismissed. Anyone with a criminal record should consider petitioning the courts to seal the record from access by an employer (and the public).
Click here to Learn More about Sealing a Criminal Record
The negative effects of mass incarceration extend well beyond employment and income. In nearly all states, prisoners lose their right to vote. In Massachusetts, that right is restored after release, but many states impose much lengthier bans on felon voting. Some ban felons from voting for life. In addition, many former inmates find it difficult to qualify for food assistance, student loans, visitation time with their children and a whole host of other rights and privileges that most people take for granted.
Are We Creating a Permanent Underclass?
Many worry that the trend toward mass incarceration is creating a second class of citizens destined to lag behind their peers. While some young people head off to college, others from less-fortunate backgrounds get caught up in the cycle of poverty and addiction that so often leads to incarceration. This disparity tends to affect minority communities the most – as of 2007, there were three times as many African-American people living in prisons than in college dorms. The rate for Hispanic Americans was only slightly lower, with 2.7 prisoners for every dormitory resident.
None of this is to say that people who commit serious crimes shouldn’t be held accountable for their actions. But, these statistics show that our current trend toward widespread mass incarceration and lengthy prison sentences is not the way to build a better society. A more compassionate model that focuses on providing opportunities to people who might otherwise become entangled in the criminal justice system would prove more effective.
In the meantime, the negative impacts of incarceration make it all the more important for people charged with crimes to vigorously defend their rights. Even if the charge cannot be completely beaten, an experienced criminal defense attorney may be able to minimize the consequences of a conviction.
Contact Us
Our Boston criminal defense attorneys can help protect your record, or help to seal it.
Please contact our firm at 617-523-4300 to schedule an initial consultation.
One of our attorneys is a native bilingual speaker in Spanish and English, and another is fluent in French.
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The Cunha & Holcomb Legal Team
