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Best Interest of the Child – Providing For Your Child’s Financial Future
Protect The Best Interest of the Child When You Divorce
For couples going through divorce, their most important concern is not their home, business or savings, but the best interest of the child, every child. In circumstances in which couples must divvy up the marital assets, even if it amounts to millions of dollars worth of property in a high net worth divorce, the physical and emotional welfare of their children usually takes precedence over their own needs.
However, the process of ensuring the best interest of the child during divorce often involves several components. For instance, not only is it important to foster continuing and long-lasting relationships between children and both parents following divorce, but it is equally essential that children – and their potential needs – are financially provided for as well.
Massachusetts divorce law provides for children in its divorce property division statute – the judge must “consider the present and future needs of the dependent children of the marriage” when apportioning property during divorce. This is just one of many laws in Massachusetts that have the ability to impact the financial future of children following their parents’ split.
Child Custody Laws in Massachusetts
Often, a child’s emotional and financial well-being – and his or her parent’s corresponding obligations – will be tied to the custody arrangement ordered by the court. Therefore, it is crucial to understand how child custody laws work.
Massachusetts divorce law recognizes two distinct types of custody: legal and physical. For example, while legal custody typically has to do with a parent’s right to make decisions regarding a child welfare – such as issues involving education, medical care and religion – physical custody pertains to which parent the child actually lives with. Importantly, in determining the best interest of the child, courts can award sole or shared custody, as to both legal and physical custody.
Massachusetts divorce law encourages parents to work together to develop their own custody and parenting arrangements, which can include a co-parenting plan in which both parents remain in the child’s life and responsibilities are shared. However, in circumstances in which parents cannot come to an agreement, or if the court determines the agreed-upon arrangement is not in the best interest of the child, the court will craft its own workable child custody agreement.
While exercising the broad discretion Massachusetts divorce law gives to any court, judges are governed by the long-standing legal principle of doing what is in the “best interests of the child.” Moreover, when deciding the best interests of the child, judges are guided by the circumstances. For instance, some of the more common factors reviewed by courts when determining the best interest of the child include:
- The child’s relationship with each parent
- The child’s healthcare and educational needs
- Any history of drug or alcohol abuse by either of the parents
- Any history of physical or emotional abuse of the child, or any continued risk of such abuse
- Whether the parents have a history of being able to work together and willing to cooperate in matters involving the child
- Whether past living conditions adversely have impacted a child’s physical, mental, moral or emotional health
- The child’s preference, if of suitable age and/or maturity
Child Support Obligations in Massachusetts
Probably one the principal child-related financial matters to be resolved during a Massachusetts divorce is the establishment of child support. Regardless of whether a parent is seeking child support payments or, conversely, a parent simply wishes to know the amount of his or her payment obligations, child support in Massachusetts is largely determined by established guidelines promulgated by the chief justice of the trial court. Essentially, these guidelines plug various numbers – such as parental income – into a mathematical formula in order to calculate what a parent’s child support responsibilities will be.
Child support obligations generally continue until the child reaches the age of 18, although this may increase to age 21 in certain circumstances, such as when a child remains principally dependent upon the parent with whom he or she still lives. Additionally, if a child continues to be dependent upon a parent due to enrollment in an education program, it is possible under Massachusetts law for support payments to remain in effect until the child reaches 23-years-old. Lastly, if an adult child is mentally or physically incapacitated, a financially able parent may be ordered to pay support so long as the child remains incapacitated.
It is worth noting that just because a particular child support award is established, it is not necessarily fixed forever. Massachusetts divorce law expressly permits the modification of child support if there is an “inconsistency between the amount of the existing [support obligation]” and the amount that would otherwise be required under the guidelines. Alternatively, a modification can also be ordered if there is a need to provide for a child’s health care coverage.
Other Financial Matters That Divorced Parents May Want to Consider
When it comes to the financial well-being of children following divorce, parents do not have to be limited to the tools available in family court. For instance, parents – particularly parents involved in high asset divorces – may also utilize traditional estate planning tools to ensure their children are financially taken care of in the future.
In some circumstances, it may be appropriate where the resources exist to create a lifetime trust for a young child. If properly executed, this type of trust will not only help provide for the child (beneficiary), but the assets held in the trust may even be protected if the beneficiary is ever sued or goes through his or her own divorce down the road.
A Certified Financial Litigator for the
Best Interest of the Child
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Please contact our firm at 617-523-4300 to schedule an initial consultation. One of our attorneys is a native bilingual speaker in both Spanish and English, and another is fluent in French.
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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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The Cunha & Holcomb Legal Team
