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Worcester Family Law Blog

What's the difference between physical custody and legal custody?

It can be tempting to think of child custody is a generic term, but in reality it has two distinct forms that divorcing parents need to take into account when creating a divorce settlement agreement or when contesting the matter in court. In Massachusetts these are legal custody and physical custody.

What is physical custody?

The unique challenges of relocation disputes

Sharing custody of a child is hard enough when two parents live in the same state. When one parent wishes to move to another state with the child, a new set of challenges arises.

Under Massachusetts law, a parent must request permission to move out of the state with the child. The other parent has a right to object, and rightfully so. Moving away can have major impacts on the other parent's ability to spend time with the child. Depending on the parents' incomes and how far away the parent wants to move, exercising parenting time with the child can also be costly. 

Shared parenting in Massachusetts may be good for kids

It has been generally assumed that children of divorced parents who lived with both parents afterwards would end up being stressed out due to having to move back and forth between two households. However, a study done in Sweden that was recently published in the Journal of Epidemiology & Community Health indicates that children who live with only one parent after a divorce are the most likely to feel stress due to their living situation.

Using data on a group of 150,000 children who were either in the 6th grade or 9th grade, researchers found that psychosomatic health issues were most common in children living with a parent with sole custody after a divorce. Children living in nuclear families were the least likely to have problems, while those living in joint custody arrangements fell in the middle of the other two groups.

Prison and failure to pay child support in Massachusetts

Ensuring that non-custodial parents pay child support is sometimes a challenge for the justice system, and states have various measures in place to enforce child support payment arrangements. In many states, parents who fail to pay child support can have certain funds garnished and can be sent to prison. According to a report in The New York Times, the threat of prison is believed to be an effective incentive for parents who have the ability to pay but refuse to do so.

Critics of this system argue that it has a debilitating effect on the poor. The problem starts with child support assessments that are too high relative to the non-custodial parent's income. When the parent pays only partially or fails to make payments at all, the debt burden becomes overwhelming. A series of punitive measures, including the partial seizure of paychecks, bank accounts and tax refunds, ensues. The final measure can be jail time.

Pets and divorce in Massachussetts

Although many people consider their pets to be a part of their family, courts view pets as personal property, subject to division in a divorce just like any other asset. Pet owners may fiercely litigate regarding who will be awarded their pets, and courts across the country have come up with often conflicting rulings regarding them.

Normally, as personal property, pets will be viewed as belonging to the person who is their legal owner. Some courts, however, do apply a best interests of the animal standard in determining with whom the pet will reside.

Taxes and alimony deductions

Massachusetts residents who are either under an order to pay alimony or who receive it from their former spouses through court order or agreement need to be aware of how alimony is treated under federal income tax law. The IRS allows those who pay alimony to deduct the payments, while requiring those who receive it to report the amounts as income.

For federal tax purposes, amounts paid to the former spouse or on the former spouse's behalf can be claimed as deductible alimony payments if they are made under a court order or pursuant to an agreement. Any amounts paid that are for child support are not able to be deducted, and the spouse that receives child support does not have to report it as income.

A look at the law surrounding grandparents' visitation rights

Massachusetts parents and grandparents interested in custody issues may wish to know more about how courts and state laws address grandparent visitation. When there is a dispute over visitation rights, state law may require unique circumstances in order to go against a parent's wishes.

When it comes to visitation, grandparents' rights can be difficult to obtain when the parents object to them. An important U.S. Supreme Court decision addressed the issue of what the law says when parents and grandparents are fighting over visitation. As long as the parent is caring for the child, the court held, the government cannot force them to allow the grandparents to visit, except in special situations. Essentially, the court held that the parent has ultimate control over parenting decisions.

Divorce and remarriage affect Social Security benefits

For residents of Massachusetts and other parts of the country, divorce and remarriage can have an impact on their rights to their ex-spouse's Social Security benefits. The United States Social Security Administration allows ex-spouses to collect Social Security and survivor benefits only under certain conditions. They have to have been married for at least 10 years and must remain single to keep receiving spousal benefits.

If the survivor is caring for a child who is under age 16 or disabled, however, they do not have to meet the 10-year requirement to receive survivor benefits. The past work record of an ex-spouse can also have an impact on the amount of benefits received after a divorce.

Child support can be deducted from Social Security benefits

Social Security income is usually safe from garnishment for debts such as credit cards or other unpaid personal debts. However, for those who owe back child support in Massachusetts and most other states, certain types of Social Security income can be garnished to repay this type of debt.

While most forms of Social Security income can be garnished, there is one type that cannot. Supplementary Security Income benefits are viewed to be a form of welfare by the government. Therefore, these payments are not eligible for child support garnishment. For benefits that are eligible for garnishment, there are strict limits as to how much the garnishment can take from the monthly benefit. Child support has a larger percentage than most other types of government debt, with up to 65 percent allowed for garnishment.

A wife's serious illness raises the chance of divorce

Even though Massachusetts has the lowest divorce rate in the nation, it is worth taking note of the factors that can influence the likelihood of divorce for any couple. A recent study published in the Journal of Health and Social Behavior found that divorce was 6 percent more likely for couples in which the wife had a serious illness. When the ill spouse was the husband, on the other hand, the chance of divorce did not increase.

Researchers used the Health and Retirement Study (1992-2010) to gather data on 2701 marriages in which one or both spouses experienced serious illness in order to see how illness affected divorce and widowhood. Not surprisingly, both wives' and husbands' illnesses were associated with an increased risk of widowhood. However, only wives' illnesses were associated with a small but increased risk of divorce. One possible explanation for this finding has to do with the stresses associated with caregiving. The healthy spouse may have to take care of the sick spouse while also managing all the other household responsibilities. For men, not typically socialized into caregiving roles, this task may prove overwhelming.

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