Law Office of Ariana Kushak

Ariana Kushak is the principal and founding partner of the firm. She has been a member of the Massachusetts bar since 2005. She is also a member of the Massachusetts Bar Association and the Family Law Division of the Massachusetts Bar Association. A graduate of Brandeis University and Suffolk University Law School, she represents clients throughout Eastern Massachusetts. Attorney Kushak has successfully represented clients in a wide variety of family law matters, including handling various stages of divorce litigation, child support issues; litigation involving attempted international child abduction; drafting Separation Agreements and taking steps to prevent removal of minor children from the United States. 

Much is written about divorce law. This is not surprising. Unfortunately, divorce  is a common occurrence in our society.  If you Google “Massachusetts Divorce”, you will receive thousands upon thousands of links.  Most of the links will point you to some forum where a self proclaimed expert will explain some aspect of divorce to the reader. All too often, the information contained in such publications will be wrong or misleading.  In this brief overview, we will attempt to highlight some common factual fallacies. 

1) Fact or Fiction? We have been living as a couple for 7 years in Massachusetts but have never formalized our marital status with the Commonwealth.  Because we lived together as a married couple for a statutory period, we are married in the eyes of the law. Fiction. Massachusetts does not recognize Common Law Marriage.
 
2) Fact or Fiction? If I am not married in the eyes of the law, I cannot get any alimony or separation of assets. Fiction.  Family and Probate Courts are courts of equity.  Equity deals with fairness.  A qualified attorney may be able to obtain a fair and equitable outcome for you vis-à-vis your (former) significant other, be it a partner, a boyfriend or a girlfriend,  even if you two were not married.

3) Fact or Fiction? My spouse and I decided to part ways. We agree on everything. Therefore, we do not need to go to court.  Fiction.  Spouses may separate their assets and their home by themselves. However, a mere separation does not constitute a divorce.  Marriage is a status which has been granted and recognized by the Commonwealth.  What Commonwealth creates can only be dissolved by the Commonwealth.  In Massachusetts, marriage can only be dissolved by the Probate and Family Court. 

4) Fact or Fiction? I have no assets to divide with my spouse, so I do not need an attorney to go through divorce.  Fiction. Divorce, just like marriage, has future implications. There are many issues to resolve aside from separation of assets.  Issues vary by individual circumstances, but typically include Alimony, Child Support, Custody of Children, Visitation Rights, and Custody of “special property interests” .

5) Fact of Fiction? If I represent myself and make a mistake,  I can always correct it by a process called modification.  Fiction. Modification is only available when a petitioner is able to demonstrate that there has been a material change in circumstances from the time divorce has been granted.  A mistake of a pro se litigant alone will not support a modification.

6) Fact or Fiction?  I have a prenuptial agreement.  If I later get divorced, the judge hearing my divorce is bound by the provisions of the agreement.  Fiction. A Probate and Family Court judge may unilaterally strike out a provision or the entire agreement if she determines that it is not fair and reasonable.

7) Fact or Fiction? My spouse and I can agree in a separation agreement that there will be no alimony. Fact in most circumstances. However, the  judge will not allow one spouse to become a financial burden on the state if the other spouse is able to pay support.

8) Fact or Fiction? I received inheritance from my rich uncle. This property will not be divided.  Fiction. In Massachusetts, divisible property is comprised of property whenever and however acquired.  It may include the inheritance from your uncle, particularly so if your spouse has helped to make that inheritance grow in value. 

9) Fact or Fiction?  On May 1st 2011, I had a hearing in court where the judge granted me a divorce.  On June 1st, 2011 I can re-marry. Fiction.  Polygamy is not allowed in our Commonwealth.  Grant of divorce does not become final until after 90 days have passed from the date the Judgment of Divorce had been issued. 

10) Fact or Fiction?  I can agree with my spouse not to pay child support.  Fiction. The right to child support belongs to the child, not to the parents.  The state will enforce the right to child support even if the spouse will not.

11) Fact or Fiction? I can agree with my spouse on what the amount of child support will be.  Partially Fiction. Massachusetts has promulgated child support guidelines which set minimum payments based on financial data.  A parent can agree to pay more.

12) Fact or Fiction? If I represent myself in a divorce case, a judge will tell me if the Separation Agreement is not fair. Depends on the judge.  The judge will ask each spouse if they understand and agree with terms of the Separation Agreement.  There is no affirmative duty on the part of the judge to question fairness unless an agreement is so one sided that it shocks the consciousness or violates some statutory provision.

13) Fact or Fiction? Our marital property will be divided 50/50 upon divorce.  Fiction. Massachusetts is among a minority of states that still use the equitable division of assets method.  Fair and equitable does not mean equal. There are many factors the judge will look at in determining how the assets will be split.

14) Fact or Fiction? There is no difference between child support and alimony payments. These are just  two different labels for the same thing.  Fiction. Child support will always have to be paid if the divorcing spouses have a minor child or children while alimony will not.  There are many situations where neither of the divorcing spouses will get alimony.  Furthermore, Child Support payments are tax deductible while alimony is not.

15) Fact or Fiction? We have been married for 2 years, so my spouse will be eligible for alimony. Fiction.  See Answer to Question 14 right above. Judges are reluctant to order alimony payments in a short term marriage.  If the marriage has lasted only a few short years, judges will typically place the parties in positions they were prior to the marriage.

Next time we will talk about child custody.
The proceeding was a superficial overview of most common myths in divorce law.  This writing is for general informational purposes only. It was designed to give readers some very basic understanding about issues that come up in divorce law and is not a substitute for a qualified legal advice.  A divorce is a complicated process riddled with many hurdles. Don’t go through it alone, hire a lawyer.  If you have any questions or require further assistance, please call the Law Office of Ariana Kushak