Cunha & Holcomb, P.C.

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.

+++++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:

+++++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.

+++++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.

+++++Ultimately, every parent going through a divorce needs to review his or her financial situation in order to determine how to provide for the children following divorce. Given that this can get quite complex very quickly, it is important for parents to remember that it is often advisable to speak with a Certified Financial Litigator while making such decisions. A knowledgeable attorney can provide guidance in all applicable areas of the law, including divorce, child custody and child support.

+++++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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