Family Law & Divorce at Lipman, Katz and Boston
Divorce, custody disputes, child support, prenuptial agreements, postnuptial agreements, parental rights actions, grandparent rights, de facto parentage, adoption, and guardianship all require careful attention and strong representation. The attorneys at Lipman, Katz and Boston have decades of experience in handling family law matters.
The Maine Divorce Statute – “No-fault” Divorce
Maine divorce statute Title 19-A M.R.S.A. Section 902 allows for “no-fault” divorce such that a party may file on the grounds of “irreconcilable differences” rather than having to prove a grounds for the divorce such as adultery. However, sometimes facts surrounding the circumstances of a marital break-up can become important in divorce proceedings particularly if they impact the finances of either party, the marital estate, or the well-being of children.
It is also important to understand that upon filing for divorce in Maine, or upon being served with a divorce, parties are subject to a preliminary injunction of the court, which is explained in Title 19-A M.R.S.A. Section 903. In summary, parties cannot transfer, encumber (take a loan out against), hide, or sell property of either or both parties except under special circumstances such as for “necessities of life”, for reasons of conducting business “in the usual course” unless he or she has written consent of the other party or permission from the court. The injunction also prohibits either party from removing the other or any children of the parties from a health insurance policy. If either party is found to have violated the preliminary injunction, they can be subject to sanctions by the court including a finding of contempt.
Previously referred to as alimony, spousal support is often an area rife with contention in a divorce. Maine’s statute concerning spousal support (Title 19-A M.R.S.A. Section 951-A) sets for numerous factors that the court may consider in determining an award of spousal support. A handful of the considered factors include the length of the marriage, the ability of each party to pay, the income history and income potential of each party, the contributions of either party as homemaker. An experienced attorney will be able to assist in recognizing the most important applicable factors to the facts at issue, and to request the necessary information to develop those facts. While the amount of income that a party may be earning will likely be considered by the court, but a party’s income potential may also be relevant. The court may consider a party’s income and employment history, education and other criteria. In many instances, determining “income” can be complex such as when a party may be self-employed, or paid by commission. Tax returns and other financial information will most likely be necessary to make this determination. The length of the support, if any, as well as the dollar amount will be determined. This determination can have long-lasting consequences.
Property Division in a Divorce
Property Division such as real estate, personal property including vehicles, and boats, or retirement accounts are governed by statute. The court is required to set apart to each spouse the spouse’s property and to divide the marital property in “proportions the court considers just” after considering a number of factors set forth in Maine statute Title 19-A M.R.S.A. Section 953 which includes the contribution of each spouse to the acquisition of the property, the value of the property and the economic circumstances of each spouse at the time of division of the property. Marital property in Maine generally means all property acquired by either spouse after the marriage with some exceptions, which are identified in the statute such as property acquired by inheritance to a particular spouse, or excluded by valid of agreement of the parties (a prenuptial/antenuptial agreement), and others. Oftentimes, the details are most important in sorting out property division. Has the property been appraised or a value fairly assigned, has the necessary information been exchanged to ensure all property has been included, have the terms of the transfer or “buy out” from one party to another been determined such as when, and how this will occur, who will be responsible for the debt or payments, and what happens if it does not occur? When there are assets involved and particularly assets with the debt such as a mortgage, details can be as important as the division itself. Almost no one wants to be tied to a mortgage on a home where he or she no longer resides if not necessary to do so! An experienced attorney will know what to include to help prevent troublesome situations later.
When a child or children are involved in a divorce, the parties, (or if they cannot agree, the court will need to decide) whether decision-making about all matters concerning the care of the child (such as medical, education, religion) will be “Shared” by both parents, “Allocated” (the decision making process may be divided up by topic, or the parties may be required to confer with one parent allocated final decision making authority on some or all issues), or “Sole” (one parent makes the decisions). The residential arrangements will also need to be determined. Will the parties share a primary residence with each having equal or almost equal time? Will one parent provide the child’s primary residence? Contact schedules for the child to spend time with each parent, holidays, school vacations and summer details should all be considered. Other importation considerations include transportation, tax benefits, and child support. If the parties are unable to agree on parenting issues, the court will decide and in doing so will apply the “best interest of the child” standard. The criteria for this analysis is listed in Title 19-A M.R.S.A. Section 1653-3. A few such considerations include: the age of the child, and the stability of any proposed living arrangements, the child’s adjustment to the child’s present home, school and community. A skilled attorney can provide valuable assistance in not only determining which factors are most pertinent, but also to assist a parent in providing the best evidence for the court to use in making its decision.
What about a child’s preference? Is there an age at which the child may choose where he or she wishes to live? The preference of the child, if old enough to make a meaningful preference is among the factors the court may consider. However, it is rarely the only factor considered by the court. The court will also want to assess the reasons behind a child’s preference. Maine law does not set an age at which a child’s age is deemed to be “old enough” to make a meaningful preference because children of the same age may have different levels of maturity.
Child support in Maine is determined by a guideline which takes into account each parent’s income. Costs for childcare, extra ordinary medical expenses, and health insurance premium are also factored into the calculation. To do the calculation, the court must look at each party’s “gross income” Title 19-A Section 2001-5 describes in detail what is and is not included as gross income. The court may also include the difference between what a party is earning and what a party is capable of earning. Computing child support is not strictly formulaic as many parents may be self-employed, or there may be other circumstances that either parents requests that the court consider such as transportation expense to commute to work or to see the child, a domestic partner or spouse who provides support to the other parent thus decreasing household expenses. There are several criteria the court may consider for “deviating” from the child support guideline which are set forth by statute in Title 19-A M.R.S.A. Section 2007. Determinations on child support may set a benchmark of a party’s income that can be considered in future proceedings. Accordingly, it is important to have the appropriate income figure used at the outset. Child support orders may be modified if it is has been three years from the date of the last order, or if a substantial change of circumstances (a more than 15% variance) has occurred. Modifications can be burdensome, and it is best to seek legal advice as to whether it is prudent to pursue a modification.