Skip to main content
Justin Lee Kelsey

Justin Kelsey’s Answers

68 total


  • QDRO pending divorce for 401K money

    I have a pending divorce case we need to leverage 401k money to use for housing expenses to avoid foreclusure Can a QDRO be used to do this? Plan said ex does not qualify without divorce decree which can take 6+ mths. We have court date Fri for t...

    Justin’s Answer

    I agree with Attorney Coyne that you want to discuss this issue at length with an attorney because there may be numerous options to avoid foreclosure. Some of these options may include temporary support orders or liquidating retirement. Liquidating retirement is usually a last resort, which is why QDROs are typically only completed at the end of a divorce.

    If the situation warrants, it is possible with a court order to complete a QDRO for the transfer of funds held in a 401k from one spouse to the other even while the divorce cases is still pending on a temporary order. This is unusual but it is possible. However, the tax benefits of a QDRO require that the funds be transferred into a qualified retirement account in the spouse's name. It doesn't help you liquidate the funds. The only potential advantage I could see of using a QDRO to transfer the funds before withdrawing them is if you would qualify to remove the funds at a lower tax rate or without a tax penalty (for example if you were over the required age, or disabled).

    Evaluating these options is complicated and could have significant long-term impact on your finances. You should definitely consult an attorney and perhaps also a financial expert.

    See question 
  • Can the Norfolk Probate court force me to meidate my divorce case

    I heard that they have forced mediation on your first court appearance?

    Justin’s Answer

    At most substantive court appearance on a divorce case in any Massachusetts Probate & Family Court (including Norfolk County) you will likely first be sent to the Probation office (also called Family Service) before your case is heard by a Judge. This is often called mediation, though technically it is not true mediation because it is not confidential. The family service officers who facilitate the "mediations" report back to the Judge what is said.

    In most cases you are required to meet with Family Service before you can see a Judge, unless there has been domestic violence.

    See question 
  • In My divorce agreement College is supposed to be shared according to our incomes

    What if our daughter wants to go out of state when she could go in state and pay in state tuition.

    Justin’s Answer

    The specific language that your Divorce Agreement contains is very important. If your agreement states that you are to share according to your incomes, and you can't reach an agreement as to how that should be applied, then you may have to return to court on a Complaint for Modification to determine exactly what your liability may be.

    In that case the Court might consider limiting the cost. If this issue is put before a Judge, many are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.

    In addition, many agreements contain a clause that requires parents to cooperate and attempt to agree with the child on a location. If you are not given input on this decision then that information might affect a Judge's opinion of how much you should contribute.

    See question 
  • Can the court force me to pay for a private college

    Our separation agreement says that we are to equally share the costs of secondary education, what does that mean

    Justin’s Answer

    The specific language that your Separation Agreement contains is very important. As Howard indicates, many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ and so you have not provided enough information to determine exactly what your liability may be.

    The specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.

    If the issue of payment of college is modifiable in your agreement, and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification. If this issue is put before a Judge, many are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents. A more in depth consultation with a local and knowledgeable attorney in which they have the opportunity to review the exact language of your agreement would probably be helpful in determining your best course of action.

    See question 
  • I am married state of MASS. My wife has two children I insure them If we divorce am I still legal resp. to prov health ins.

    My wife and her ex-girlfriend each had a child they broke up. My wife and I married I added her and her biological son to my health ins. I couldn't add the non-biological daughter because she was not adopted by my wife. However my wife and her ex ...

    Justin’s Answer

    • Selected as best answer

    If I understand your qeustion correctly, you are asking whether or not you could be required in a divorce case to maintain health insurance for your wife's children. Regardless of the complications surrounding your wife's legal relationship with her non-biolgoical child, both children are hers (and her ex-girlfriend's) and they are not legally your responsibility.

    Put more simply, a current spouse is not responsible legally for their spouse's children by other relationships except in three circumstances: 1. If you adopted those children; 2. If you agree to take responsibility in a Separation Agreement; or 3. If you have become a "de facto" parent by virture of taking on the parental role to such an extent that the child would be significantly damaged by your removal from their life.

    You have not described any such circumstances in your question, and so assuming they don't exist in your case then you have no legal responsibility for those children and cannot be required to pay child support or maintain health insurance for them. Likewise, you will not have any parental rights of visitation with those children.

    You can be required to maintain health insurance for your Wife depending sometimes on what type of helath insurance your company has, but if available the Court can require you to continue cover health insurance for your wife.

    See question 
  • 5 years ago,my husband (boyfriend at the time) and I bought a condex,with his financial support,although I put the downpayment.

    I could not afford the payments alone at the time and he knew and committed to that. 2 years later we married. Now a little more than 2 years we are separated. What is his financial committment now,as we are separated, and his committment should t...

    Justin’s Answer

    In Massachusetts, the division of assets in a divorce is dependent on consideration of all of the factors described in M.G.L. c. 208 Section 34. These factors include the contribution to the assets of the marriage, acquisition of those assets, both parties contribution as homemaker, current income of both parties, the age of the parties length of the marriage, health of the parties, etc. You should consult an attorney to discuss how the facts in your case fit the factors of Section 34.

    Generally the Court starts with a 50/50 division and varies (slightly) based on the application of these factors. An experienced attorney can explain how the interplay of these factors can result in variation from 50/50 division. In the event that you end up with the home, you will be responsible for the costs of it, but you may be entitled to some temporary support (in the form of alimony). If neither of you can afford the house then the court would likely order you to sell it.

    Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so. An award of alimony also depends on the factors in M.G.L. c. 208 Section 34.

    How all of these factors result in a settlement or judgment can be complicated and depends on much more information than you have provided here. You should consult with an attorney regarding all of the specific details of your case.

    See question 
  • Do my child support payments to my wife count as part of her income when calculating considering alimony?

    My wife and I plan a divorce in the next few weeks. When looking at the divorce spousal support calculator estimates at alimonyformula.com I need to input my wife's income. Do my child support payments count as part of her income? She makes abo...

    Justin’s Answer

    I am one of the authors of the Divorce Spousal Support Calculator (at alimonyformula.com). As indicated in the Directions of the Calculator the formulas presented "assume no child support and insufficient assets for an alimony buyout." Essentially, this means that the calculator is not designed to handle a case that also involves child support. The reason for this omission is because each state (and in some cases each Judge) deals with the interplay of child support and alimony differently.

    I am not licensed to practice in Florida and cannot give you legal information specific for your state. You should consult with a local attorney regarding how Florida law handles a combination of child support and alimony. In Massachusetts, Judges vary on this issue and we actually wrote a lengthy blog post on this subject which I have linked below. A new Massachusetts bill proposes changes to the alimony statute here which would include omitting any income used for calculating child support from the determination of alimony.

    I also perform Mediations in Massachusetts and I often recommend that clients focus at least some of their energy on common sense rather than just the formulas. For example, you should consider that designating some of your support as alimony instead of child support could result in those funds being taxed at a lower tax bracket (because alimony is taxable to the recipient and tax deductible to the payor). This tax benefit can be split by adjusting the figures accordingly and the family as a whole ends up with more net income. Their are legal consequences to alimony and child support that are different (such as how long they last) and you should consult with a local attorney to ensure that you understand the laws in Florida.

    See question 
  • A couple getting a divorce do they have to file a joint tax return if the spouse doesn't want to?

    can one spouse file on her own?

    Justin’s Answer

    For the purposes of Federal and Massachusetts income tax returns you are required to file under the status of either "joint" or "married, filing separately" if you are married to your spouse on December 31st of the tax year in question. Therefore, if you are int he process of getting a divorce but were still legally married on December 31, 2010, then you must file under one of these two statuses for the year 2010.

    There is no specific law that requires you to file under the status of "joint" or "married filing separately", and typically this is your choice. A Judge can order parties to file jointly if there will be a benefit (such as a higher refund), but this is not typical.

    In each case the choice of how to file can be affected by different factors. For example, if you are concerned that your spouse is hiding income, then you definitely would not want to file a "joint" tax return because you could be liable for his/her hidden income.

    In most cases it makes sense to file jointly because their is usually a financial benefit, but in your case you should consult with an accountant to figure out the best option for you.

    See question 
  • What law should be repealed? answer is no fault divorce!!! This law allows men to throw there wives away like so much trash

    and the court should stay out of peoples marriages and couples should be required to go for counseling before being allowed to file for divorce there are no morals in the state of Massachusetts when the courts allow men or women to throw away marr...

    Justin’s Answer

    I have to disagree with your belief that no-fault divorce should be repealed in Massachusetts or any other state.

    The New York State legislature recently approved legislation that would allow No-Fault divorces in New York. The state of New York is the last state that still requires one spouse to have committed a wrong (or at least to take the blame) for the dissolution of a marriage.

    Many, including the Roman Catholic Church, oppose the change because they believe it will raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).

    If No-Fault divorce doesn't cause a rise in divorce rates, then what is the impact?

    According to a New York Times op-ed column, there are potential advantages a. The advantages include an 8-16% reduction in wife's suicide rates and a 30% reduction in domestic violence (according to a University of Pennsylvania report by economists Betsey Stevenson and Justin Wolfers). In addition, the ability of one participant to end the marriage can change the bargaining power in the relationship causing both partners to change how they view the marital relationship. This could cause either party to invest less in the marriage, or could cause both parties to be more attentive to unhappiness in the marriage.

    A valuable impact of allowing no-fault divorce, though, can be the ability of more couples to use mediation. Because neither party needs to accept fault, they are more likely to try and work out their differences with a mediator than litigate their case. Increasing the number of mediations could be the single-most positive impact of no-fault divorce, because, as one study found, mediation increases the likelihood of settlement, improved co-parenting relationships between parents, and improved the relationship of non-custodial parents and their children.

    See question 
  • How long after a divorce in the state of Massachusetts does someone have to wait before getting married again?

    How long after a divorce in the state of Massachusetts does someone have to wait before getting married again?

    Justin’s Answer

    In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

    In Massachusetts the length of this waiting period depends on the type of divorce case.

    In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

    In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

    This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

    Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. If the parties are unable to settle their divorce case, then a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

    This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

    In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.

    See question