Can He Do That?
Imagine, if you could, a mother of two children, say ages 7 and 4. Let’s say this mother-let’s call her Beth – has just today served her estranged husband – call him Jim –with divorce papers. It’s been a long time coming. Jim moved out the previous year due to his drinking and abusive behavior. Beth is concerned about a lot of things, but one major concern is that Jim may get so angry that he’ll do something “crazy.”
Beth’s cell phone rings. She checks caller ID, even though she knows who it is before she reads: “Jim” on the call screen. She answer the phone with a polite “Hello.”
Jim tears into her, “So, you think you can divorce me, huh? You think you can just kick me out and get half of my house!! Not gonna to happen! Bet your lawyer didn’t tell you all the ways I support you! Well I need a lawyer too! So I’m going to hire the most expensive lawyer I can find. And you know how I am going to pay for it? I’m going to stop paying for my health insurance! That means not health insurance for you or the kids! What are you going to do now, Beth?”
Before Beth can even utter “No, wait” the line, predictably, goes dead.
This is not some esoteric exercise about something that might happen one day; a scene very similar to this happened to my client not too long ago.
And her question to me was, simply, “Can he do that?”
Most people who file for divorce have no idea what they can and cannot do once they file for divorce. And most people have no idea of the rules- what is, after all, going to stop my wife from taking me off of her 401(k) the day I file for divorce? Can I change my will to disinherit my wife as soon as she filed? What about my health insurance?
The interesting thing is that, thankfully, we have already thought these nightmare scenarios up already. Chances are, if there is a way a soon-to-be-ex-spouse can scare, harass, hurt or damage their spouse, somebody else has already tried it. And the courts have put into place measures to combat this.
In the story above, Beth had just served her husband with divorce papers. These “papers” consist usually of the Complaint for Divorce and a Summons that, in effect, summons the party to answer the Complaint at court (in writing). Most people never read the Summons.
The Summons has on it, in bold type, an “Automatic Restraining Order”, which prohibits the parties from engaging in certain activity that could jeopardize the family, its finances or health before the divorce becomes final. In a nutshell, here are the terms of the Automatic Restraining Order that serves to protect everyone who files for divorce in the Commonwealth of Massachusetts:
1. Selling, transferring, encumbering or in any way disposing of property (with limited exceptions, ie: normal living expenses): This one seems to make sense and most people understand the need to protect property even if they did not know about this restraint. Think about it: let’s say Jim, in the story above, owns a yacht in his name alone. It’s worth $600,000.00. If Jim were to get divorced, under the law, most likely he would have to sell the yacht and give half the proceeds to Beth. Jim does not want to sell the yacht; he wants to keep it. So Jim concocts this scheme where he “sells” his yacht to his brother for $1.00. This way, Jim believes, when they go to divvy up all the property, Jim can turn around and say, “Sorry, I don’t own a yacht anymore!”
It’s unfair, its deceptive and its fraud. The court already thought of this and that is why people are restrained from engaging in such transactions.
2. Incurring further debts that would burden the credit of the other: Once again, this one just seems to make good sense. Again, using the malicious Jim above, let’s say Jim wants the Marital Home. And he concocts this plan to run up a huge amount of credit card debt on the couple’s joint credit card and max it out. Jim’s goal is twofold: first, it would deny Beth the opportunity to use the card for normal, regular living expenses. Second, by having a large amount of debt on their joint card, Jim believes that Beth won’t have any money left, and that Jim can buy Beth out of her share of the Home for very little money.
Once again, the court stops people from engaging in such behavior with this order.
Changing beneficiaries on life insurance policies, pensions, or retirement plans. This one is slightly more subtle. The issue is that when people are getting divorced, the court does not want the turmoil to interrupt these people’s lives. 401(k) accounts, IRAs etc have beneficiaries; the court does not want angry litigants to use these as bargaining chips as the process goes on (imagine, if you will, if Jim decides to change his 401(k) to his girlfriend? I think we can assume that would provoke a reaction in Beth. Finally, there is a macabre, yet practical, reason for this: what happens should a party die during the litigation? The courts don’t want any more upheaval than is necessary and require people to keep their plans static until a final divorce agreement is in place.
4. No party will cause a party or any minor children to be removed from any insurance coverage, including life, automobile, home or health insurance policies (nor will a party allow such coverage to lapse): This was the one Beth was looking for. The court does not want people to be without health insurance and the court does not want one party to use that power to threaten another with removal of that insurance. Again, its simply not fair.
Power imbalance is a huge issue in marriage and in divorce. One party who has all the power will usually use it against the other even in marriage, to say nothing of using that power during a divorce. The power to move assets; the power to cut off funds; the power to run up debt and the power to end insurance coverage. Nobody benefits when such power is used and abused.
The court limits greatly the potential abuse of such power so that the parties may engage in a healthier environment during their divorce.