NICASTRO LAW, L.L.C.  

 

PRENUPTIAL AGREEMENT (Prenup)

POSTNUPTIAL AGREEMENT (Postnup)

DIVORCE

ALIMONY

CHILD SUPPORT

VISITATION

CUSTODY

MODIFICATION (MODS) and

RESTRAINING ORDER (RO 209A)

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With the United States leading the world in its divorce rate, at 4.95 per 1,000 people, we are happy to say that Massachusetts can boast that it has the lowest divorce rate in the country at 2.4 divorces per 1,000 people.  Hopefully, our Massachusetts' clients will never need one.  However, for those of us that have had a divorce and those that still will, we have prepared the process in a nutshell below.

LEGAL SEPARATION

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The Divorce Process in a Nutshell

A divorce is started by one of the parties or the attorney filing a Complaint for Divorce in the Probate and Family court. 

After the Complaint for divorce is filed, a Summons will issue and a copy of the complaint must be delivered to the non-filing spouse in the correct manner. 

After the spouse receives the Complaint, the spouse will have a certain amount of time to answer it and may also file a counterclaim for divorce.

After a complaint for divorce is filed, certain motions may be brought before the court seeking temporary relief pending the final divorce.  Sometimes one spouse may be seeking temporary support or temporary custody or a restraining order.  If one party is in fear of imminent physcial harm, it may seek a restraining order under Massachusetts General Laws Chapter 209A.  Sometimes, one spouse may seek attorney fees to be paid by the other spouse.

After filing the Complaint for divorce, the court grants the parties a certain amount of time for "discovery", which is the term used to describe the formal time period and manner in which the parties, or the attorneys attempt to discover facts related to your case, which usually involves obtaining financial information or disclosure of financial information by each side to enable the attorneys to recommend a fair and reasonable divorce settlement.  Formal "Financial Statements" often referred to as pink sheets, due to their color,  are prepared by the parties or the attorneys and signed under penalties of perjury to present to the court.

If after obtaining the financial information, the parties can negotiate a settlement, it is reduced to a written separation agreement.  The agreement is then submitted to the court for approval.  If the court determines that the agreement is fair and reasonable, then it will hold a final hearing and incorporate the agreement into its Judgment of Divorce.

If the parties cannot negotiate a settlement, the case will be scheduled for trial.  At the trial, a full evidentiary hearing will be presented by each side.  The Court will make the final decision as to child support, custody, visitation, alimony and division of assets.

EXPENSIVE DIVORCES AND HOW TO KEEP THE COSTS DOWN.

Why is it that some divorces are so costly and take so much time to resolve.  Divorces that are amicable, where each side wants the divorce and the parties can agree on the separation of the assets, are generally inexpensive. 

What drives up the cost of a divorce can be caused by several factors.  Remember in many cases, there is an attorney on each side.  So, the first thing is to find an attorney who is committed to keeping the cost of the case low without compromising quality.  Once you have found a competent attorney who will work with you to keep the price down, the spouse will want to find an attorney on the spouses side with the same goal.  

If each party can work toward resolution on their own, it will significantly cut the cost of the attorney, as the attorneys often charge hourly for their work or budget segments of the divorce project.  Remember if there is an attorney on one side being paid, there is an attorney on the other side being paid.  If one party is determined to be obstinate or vengeful, then that one will hire an attorney to fight for everything.  This we would term a more "hostile" divorce.  In that case, the divorce will be more costly and the process will run slower, as there will, generally, be more discovery and more dispute over asset division or custody issues.  This often calls for more paperwork, more time negotiating and more hearings.

At Nicastro Law, we will sit down and explain the specifics of how to avoid a costly divorce.  Sometimes, the ability to keep a case "cost efficient" is not easy, especially if the other side wants to have an  unfair and unequal division of the marital assets.  If one side wants more than a 50% division of assets, such that the division is not equitable, then the person faced with the inequity will have to determine how to proceed.  This can be a costly decision.   If our client is determined to fight for things they are entitled to; and the other side will not agree, we will try to give our client an estimate of what it will cost to fight for the specific asset or benefit and allow our client the opportunity to decide how they would like us to proceed. 

In most cases, we will be trying to attain a 50/50 split of the marital assets and joint legal custody with child support paid to the custodial parent by the the non-custodial parent.  

The hardest part of the divorce process,  by far,  is for either spouse to trust an attorney.  Each party to the divorce process is often reeling through the emotional devastation caused by the breakdown of the marriage and feels the fresh wounds caused by the break up of the relationship that was supposed to last forever.  The factors that caused the breakup whether disillusionment, infidelity, abandonment, abuse, fear of bodily or emotional harm, financial ruin, or plain loss of love by yourself or from the significant other, is not at all conducive to forming a subsequent trusting relationship, especially with an attorney who you do not know or trust, who is also costing you money.  So, what you need most, to trust someone to look out for you and your future financial security, your attorney, comes at a time, when your ability to trust is at an all time low in most cases.

At Nicastro Law, we always recommend that each party seek some form of counseling or therapy to work through the hardship and emotional issues caused by the breakdown of the marriage.  In some cases, our clients have separated and  have already gone through the grieving process, but this is not the norm.  Sometimes having a therapist helps the person going through the divorce to get feedback on whether what is going on is "normal."

We find it works best and is more cost effective, when our clients hire a competent LICSW or licensed counselor or social worker trained in this field to listen and give specific counsel related to their situation during this difficult time of life change, growth and restructuring.  At Nicastro Law, our lawyers are trained in the courtroom and with the law.  They also strive to have excellent communication skills for negotiating the case with the opposing counsel. We are not licensed social workers and though we do feel empathy, and can provide support and encouragement and legal advice, we are not trained in the specifics of social work and depression which often accompanies the divorce process.  So, it is very advantageous to have an unbiased therapist with a fresh outlook on your life situation to consult with. 

Free Consultations to meet the attorney

Please do not  hesitate to call us for your free consultation to meet with the attorney.

If you are more comfortable with email, you can reach us at info@Nicastrolaw.com

For Your Convenience, We Have Added the Following Payment Options:

MARRIAGE IS HOPEFULLY FOR BETTER; BUT SOMETIMES IT'S FOR WORSE.

Our Attorneys are here to help you through it.  Our goal is to save you the pain of an expensive, litigious  divorce at a time when the emotional devastation and resulting vulnerability is already more than enough. 

CLICK HERE FOR: MORE DETAILED INFORMATION ON DIVORCE, CUSTODY, CHILD SUPPORT, SEPARATION AGREEMENTS, AND ALIMONY UNDER THE NEW ACT AND GUIDELINES.

PRENUPTIAL AGREEMENT

Being divorce lawyers, we are in the best position to advise you as to how to plan your asset division in advance in the most cost efficient way in the event things don't work out after all efforts have been made to save your marriage.  By having a  well-drafted prenuptial agreement in advance of marriage, both you and your spouse can have certainty and more security in the event of an irretrievable breakdown of the marriage union.  

In divorce matters, we can assist you with all family law issues involving alimony, child support, visitation, custody and restraining orders. 

POSTNUPTIAL AGREEMENTS HOLD UP BY THE SUPREME JUDICIAL COURT 

For the first time in history the Supreme Judicial Court of Massachusetts on July 16, 2010, unanimously ruled in the case of Kenneth S. Ansin vs. Cheryl A. Craven-Ansen  SJC-10548, that postnuptial agreements,  signed after the marriage is entered into but before a divorce,  can be enforced by judges. Now a properly drafted and executed Postnuptial Agreement, which means an agreement that is entered into AFTER marriage, should be enforced.  However, enforcement is not automatic, as the agreement must be scrutinized to insure it was entered into meeting all legal requirements.  For example, the postnuptial agreement cannot be entered into fraudulently or coerced by a spouse with threats of divorce.  The agreements must meet stringent standards.  At Nicastro Law, L.L.C., our attorneys have been keeping up with the law to insure that their clients entering into postnuptial agreements are protected.  Chief Justice Margaret H. Marshall writing on behalf of the seven-member court stated that "Such contracts may inhibit the dissolution of a marriage or may protect the interests of third parties such as children from a prior relationship."  Up until now, a couple married or getting married in Massachusetts had only two options if they wanted to protect their assets, one was to sign a binding prenuptial agreement which  had to be entered prior to the marriage, as well as meet other stringent requirements to make it enforceable or second to sign a separation agreement when the marriage was falling apart.  Now, there is another option, the postnuptial agreement entered into during the course of the marriage.  The bottom line is now Massachusetts has a new way to save costs because whether you do a postnuptial agreement (postnup) or a prenuptial agreement (prenup), you are still working out a viable alternative to a costly litigious divorce battle. 

DIVORCE STATISTICS FOR MASSACHUSETTS, THE U.S. AND THE WORLD

The current projections taken from divorce statistics show that probably 40 or 50% of marriages will end in divorce if the current trends continue. 

The state with the lowest divorce rate in the entire nation is Massachusetts, which was 2.4 divorces per 1,000 of the population in 2004.  It went down to 2.3 per 1,000 of the population in 2007.  Provisional data from the 2008 Division of Vital Statistics showed the 2008 Massachusetts divorce rate was at 2.0 per 1,000 of the population.

The state with the highest divorce rate is Nevada with 9.1 divorces per 1,000 population.

10% of the United States population is divorced.

The average length of a divorce proceeding is one year. 

The country with the highest divorce rate in the world is United States with 4.95 divorces per 1,000 persons, but significantly lower in Puerto Rico, which is 4.47 per 1,000 population.  This is followed by Russia at 3.36 per 1,000 population and United Kingdom at 3.08 per 1,000 population.

The country with the lowest divorce rate in the world is Sri Lanka with .15 divorces per 1,000 population followed by Brazil at .26 per 1,000 population and Italy at .27 per 1,000 population.

GRANDPARENT RIGHTS

Grandparents or a grandparent may receive visitation rights if the child's parents have divorced or separated, if a parent is deceased, or if the child was born out of wedlock but paternity has been established. Establishment of paternity is not required for visitation by the maternal grandparents. The best interests of the child must be considered, but no factors are given by statute for determining best interest. Several cases have addressed the issue, notably Blixt v. Blixt, Guardianship of Norman, and Sher v. Desmond. Adoption ends grandparents rights unless the adopting party is a stepparent. See the pertinent Massachusetts statute.

WHAT DOES A JUDGE CONSIDER WHEN DETERMINING ASSET DIVISION

In Massachusetts, the law provides that a judge take into consideration the following factors in making an appropriate division of the marital assets: 

1. The length of the marriage;
2. The conduct of the parties during the marriage;
3. The current age of the parties;
4. The health of the parties;
5. The station of the parties;
6. The occupation of the parties;
7. The amount and sources of income of the parties;
8. The vocational skills of the parties;
9. The employability of the parties;
10. The estate or assets of the parties;
11. The liabilities of the parties;
12. The needs of each of the parties;
13. The opportunity of each party for future acquisition of capital assets;
14. The opportunity of each party for future acquisition of income;
15. The contribution of each party in the acquisition, preservation or appreciation in value of their respective estates;
16. The contribution of each party as a homemaker;
17. The needs of the children.

Still have questions? Please contact us anytime! We look forward to hearing from you.

info@nicastrolaw.com

Harassment Prevention Orders

Under Massachusetts General Laws Chapter 258E, people who have suffered harassment may ask a judge to issue an Order to protect them from further harassment or abuse.  They are commonly called "Harassment Prevention Orders" or "Restraining Orders" or "258E Orders." These orders should not be confused with the M.G.L. Chapter 209A Restraining Order because there are many substantive differences as to jurisdiction, venue, eligibility for relief and available relief.