Susan Sard White was born and raised in Huntington, New York, where she graduated from Huntington High School in 1977.  She received a Bachelor of Arts degree in Political Science, Magna Cum Laude, from Brown University in 1981.  She graduated from Northeastern University School of Law in 1985.  Susan served as a law clerk to Chief Judge Shane Devine at the United States District Court for the District of New Hampshire from 1985-1987.  She worked for New Hampshire Legal Assistance from 1987-1995 representing clients in a large variety of civil matters.  Susan and her family moved to Cape Cod in 1995.  From 1998-2007, she was a staff attorney with South Coastal Counties Legal Services (formerly known as Legal Services for Cape Cod and Islands).  At SCCLS, Susan managed the family law unit and represented the agency on the Cape and Islands Regional Domestic Violence Council.  She and her family live in West Yarmouth where she is active in her children’s schools (previously serving as an officer in the Marguerite E. Small Elementary PTO for 4 years).  She is currently a member of the Sturgis Public Charter School Parents’ Association.  Susan sits on the Board of Directors of the Harwich Junior Theatre and is involved in local community theater as a performer and a volunteer.  Susan concentrates her practice in all aspects of domestic relations (family law). 

1. Q:  Our house is only in my spouse’s name; does this mean that I have no rights to the equity or to stay in it if we divorce?

     A:  No, Massachusetts is an "equitable distribution" vs. a "community property" state.  What this means is that any assets held in the name of either spouse are considered marital assets and they can and will be "equitably" divided at the time of the divorce.  There are 16 statutory factors the Court considers in how to equitably divide assets when a couple divorces.  These are known as the "Section 34" factors (for the section of the divorce statute, M.G.L. Chapter 208 where they are listed).  Whether or not one spouse will be permitted to remain in the former marital home post-divorce depends on the circumstances.  Although property is typically divided at the time of a divorce pursuant to this concept of equitable distribution (by property either being sold or one party buying the other out), there are some cases involving minor children where the custodial parent is permitted to stay in the former marital home for a period of time post-divorce without having to buy the former spouse out.

 A:  No.  Massachusetts has a "no fault" divorce statute that allows one spouse to allege that a marriage is irretrievably broken and obtain a divorce, even if the other spouse does not want a divorce.  There are still "fault" grounds for divorce that can be alleged in Massachusetts (including cruel and abusive treatment, desertion and adultery) that the Defendant spouse can factually dispute in an effort to prevent the divorce, but the reality is the vast majority of divorces are ultimately granted on the "irretrievable breakdown" grounds. 

 A:  Married parents of children are presumed to have joint custody of them, absent court orders to the contrary (compare the presumption, described below, for unmarried parents).  If you and your spouse are in agreement on these issues or your spouse simply is willing to accept your decisions in this regard, you do not necessarily need court orders.  However, if a dispute arises regarding any issues relating to the care or custody of your children, you will need to go to the Probate and Family Court for relief.  You will not need to file for divorce to get these types of orders if you prefer not to take that step at this time.

6.   Q:  My boyfriend and I had a baby together.  His name is on the birth certificate.  We recently broke up and we are arguing about when he will see the baby.  What are my rights?

      A:  The concept of custody of children is broken down into two types of custody, physical custody and legal custody.  The Probate and Family Court makes orders for either sole or joint/shared custody for each type of custody.   

      Sole physical custody means the child resides with one parent and that parent generally supervises and makes the day-to-day decisions for the child.  The other parent ("non-custodial parent") will have reasonable visitation with the child unless it is not in the child’s best interests.   When the child has substantial periods of time residing with each parent, it will be considered a "shared physical custody" arrangement.  In this case, each parent supervises the child and exercises the day-to-day decision making while the child resides with them.  There is no bright line as to when a non-custodial parent’s visitation time is so extensive as to make it a shared physical custody arrangement, but it is most commonly viewed as a shared physical custody arrangement when the child resides approximately half the time with each parent.

      A:  Yes, in your will you can appoint someone besides your former spouse to be guardian of your minor children in the event of your death.  However, your wishes may not be followed.  The presumption is that the surviving parent will have custody of the children unless he or she consents to the guardianship or is found to be unfit by the probate court.  This is the case whether or not you were married to the surviving parent.

A:  In Massachusetts, although custody determinations end at age 18, child support can be ordered until "emancipation".  Children aged 18 to 20 who are domiciled with a parent and who are principally dependent upon that parent for their support are considered un-emancipated and the other parent can be ordered to contribute to their support.  This is the case regardless of the child’s school attendance.  Children ages 21 and 22 who meet the above criteria are also considered un-emancipated if they are enrolled in an undergraduate educational program.

DUNNING, KIRRANE, MCNICHOLS & GARNER, LLP

COUNSELORS AT LAW

133 FALMOUTH ROAD

BOX 560

MASHPEE, MASS. 02649

WWW.DUNNINGKIRRANE.COM

SSARDWHITE@DUNNINGKIRRANE.COM

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