Checklist of Issues to Consider During Mediation
Checklist of issues to consider during mediation
1. Division of Assets:
___________ Real estate
___________ Pension/Retirement plans
___________ Stocks, bonds, annuities
___________ Bank accounts
___________ Vehicles (autos, boats etc)
___________ Personal property (furniture, dishes etc)
___________ Business
2. Issues surrounding division of property
Is one party retaining real estate of will it be sold?
Will you need an appraisal of the real estate?
How will you divide the personal property? Does it need to be appraised?
Do the pensions need to be appraised?
What date will you use as cutoff for values of property?
Do you still have joint bank accounts? At what point will you separate your bank account?
What will guide the division of property- a desire to achieve a certain percentage (50/50, 60/40 division etc. or a desire to have each party keep certain assets regardless of ultimate percentage?
Is either party expecting a significant inheritance and is that a factor which you wish to consider in the division of property?
Are there any assets which either of you wish to not consider in the division (for example- inherited assets or assets accrued prior to the marriage or post-separation)
3. Parenting
__________ Legal custody- joint or sole
__________ Physical custody- shared or sole
__________ parenting schedule
__________ holidays
__________ vacations
__________ summer
__________ birthdays
_________ reviews
__________ transportation
__________ removal from commonwealth
__________ communication and exchange of records
4. Support
__________ child support
__________ amount
__________ duration
__________ emancipation provision
__________ extraordinary expenses
__________ college and private school expenses
__________ uninsured medical/dental expenses for children
__________ review of child support
5. Alimony
________ Alimony or waives of alimony
________ If waiver, waiver of past present and future
________ If alimony, duration and amount
________ Tax ramifications of alimony
6. Health insurance
________ Who carries health insurance
________ Family plan or individual
________ Cost of insurance
________ Will insurance be available to ex-spouse post divorce, cost
________ Does other spouse have insurance available, cost
7. Life insurance
________ amount of life insurance
________ term policy- what is term and cost
________ whole life/universal- cash value
________ should life insurance continue post divorce for how long?
________ who owns policy and who is beneficiary post divorce?
8. Taxes
_________ How will taxes this year be filed
_________ Who claims dependency exemptions
_________ Who claims head of household
_________ Any tax liabilities?
9. Liabilities
_________ Liabilities joint or individual
________ Who is responsible for what liabilities
________ Can other spouse be removed as obligor
10. Merger/survival
Checklist for Divorce Separation Agreements
Checklist for Divorce Separation Agreements
This checklist is intended to be a guide that is comprehensive and specific. Not every Separation Agreement will include provisions on each of the listed points.
I. IDENTIFYING DATA
A. Place for Names of Parties
B. Date/Place of Marriage
C. Name(s) /Date(s) of Birth of Children
II. CUSTODY
A. Legal Custody
B. Physical Custody
C. Living Arrangements/Parenting Plan (including weekdays, weekends, birthdays, transportation, holidays, and vacations)
1. Current
2. Future Modification / Periodic Review
3. Each parent's access to kids when they are with the other parent
D. Relocation
E. Travel Outside Massachusetts
F. Notification of illness
G. Access to Children's Records
H. Access of other relatives to children
I. Emergency decisions
J. Parental Cooperation/Non-Disparagement
K. Religion and Religious Training
L. Contact of children with parents' new partners
III. CHILD SUPPORT
A. Support Amount
1. Initial Amount
2. Method of Establishing Payment (define income if using income-based formula other than Child Support Guidelines)
3. Allocation of costs for extracurricular activities (e.g. camp, lessons, tutoring, sports, etc.)
4. Allocation of child care cost
5. Cost of vacations
B. Duration (including definition of emancipation, and effect of death of payer)
C. Time of Payment
D. Periodic Review / Future Modification
1. If more than one child: effect of emancipation of older child(ren) on child support
2. Effect on child support when child attends college
3. Periodic changes in amount: COLA, Guidelines, percentage method, formula, other.
4. Renegotiation (without specific method for adjustment)
E. Tax Effect
1. Not taxable to recipient
2. Not deductible by payer
F. Dependency Exemption(s)
G. Children's Accounts/Investments
IV. EDUCATION
A. Definition of education (college/private elementary or secondary school)
B. Definition of educational Expenses (e.g. tuition, room & board, application fees, travel home, books, computer, etc.)
C. Apportionment of expenses (children's funds, work, scholarships, parental contributions)
D. Involvement of parties in process of choosing college to which applications will be made
E. Involvement of parties in financial aid applications
V. ALIMONY
A. Waiver of future alimony
B. Amount
C. Duration and reasons for termination
D. Time of Payment
E. Periodic Review/Future Modification
1. Calculation method
2. COLA
3. Renegotiation (without specific method of adjustment)
F. Tax Effect
1. Tax deductibility
2. Tax reporting for inclusion of income
G. Effect of Alimony Termination on Child Support Obligation
VI. HEALTH AND DENTAL INSURANCE FOR CHILDREN
A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums and co-payments
F. Uninsured medical and dental expenses (Examples: orthodonture, psychotherapy)
1. Allocation
2. Approval
G. Loss of coverage / Alternate coverage
VII. HEALTH AND DENTAL INSURANCE FOR SPOUSE
A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums:
1. COBRA costs, if relevant
2. Upon remarriage of either spouse
F. Uninsured medical/dental expense
G. Loss of coverage/Alternate coverage
VIII. LIFE INSURANCE
A. Identification
B. Allocation of cash value (if whole life)
C. Amount (death benefit)
D. Ownership
E. Responsibility for payment of premium
F. Beneficiary (optional establishment of trust)
G. Future obligations:
1. Duration, adjustment of amount
2. Documentation/Option to review policy
3. Default provision (claim on estate)
IX. MARITAL HOME
A. Property address/county/state/owners/form of ownership
B. Use and Possession
C. If Joint Ownership:
1. Type (tenants in common; joint tenants)
2. Responsibility/Liability for Expenses
i. Present/Future mortgages (including equity lines)
ii. Real Estate taxes
iii. Homeowner's insurance
iv. Maintenance
v. Capital Improvements
vi. Repairs (major and minor)
vii. Condo fees (if relevant)
3. Division of rental income (if any)
4. Tax Consequences: allocation of tax payments and depreciation, other deductions
5. Duration (including circumstances such as remarriage or change of custody that would trigger change in ownership)
6. Indemnification
D. If Transfer to Third Party:
1. Timing of transfer or sale
2. Allocation of costs of preparation for sale (including repairs)
3 Appraisal and setting asking/selling price
4 Definition of proceeds
5 Division of proceeds (including whether payer of mortgage gets credit for payment of principal)
6. Capital Gains tax consequences
E. If Transfer to Spouse:
1. Determining price (mechanism for including any deductions from equity, e.g. equivalent of realtor's fee, capital gains taxes, title V or other necessary repairs)
2. Time of transfer
3. Method, timing of payment
4. Responsibility of sole owner for expenses after transfer
5. Does non-owner stay on mortgage? If so, indemnification provision
6. Tax consequences (e.g. transferee liable for capital gains taxes)
7. Homestead
X. ADDITIONAL PROPERTY
A. Pension/Retirement
1. Description of plan(s)
i. Contributory plan
ii. Defined benefit plan
2. Valuation of plan, who pays for valuation
3. Transfer provisions
4. Division
5. QDRO requirements, who pays for QDRO preparation
B. Securities (stocks, bonds, stock options)
1. Identification
2. Balance of account(s)
3. Ownership
4. Division, buy-out, or other disposition
5. Restrictions on voting, sale
C. Bank Accounts (savings/checking accounts; money market funds; certificates of deposit)
1. Balance of account(s)
2. Ownership
3. Division or other disposition
D. Family Business/Closely-held Corporation
1. Identification
2. Description
3. Form of ownership (if less than 100%, amount of ownership)
4. Value, and who pays for valuation
5. Division, buy-out, or other disposition
E. Real Estate (other than marital home)
1. Description of property
i. Ownership form
ii. Usage
iii. Rental
1. Right to income
2. Obligation for expenses
3. Tax consequences
F. Partnerships and Limited Partnerships
1. Identification
2. Value
3. Division, buy-out, or other disposition
G. Pending Legal Actions
H. Tangible Personal Property
1. Possession and storage
2. Division; Provision for removal
I. Trusts
1. Identification
2. Present or future interest in trust, nature of interest
3. Value
4. Division, trade-off, or other disposition
J. Inheritances, actual or potential
1. Identification
2. Present or future interest in inheritance, nature of interest
3. Value
4. Division, trade-off, or other disposition
K. Vehicles
1. Make, model, year
2. Who holds title
3. Ownership upon divorce
4. Responsibility for Loan/Hold Harmless
5. Cooperation regarding applicable transfers
L. Intellectual Property, including royalties, copyrights, trademarks, patents, etc.
M. Cemetery Plots
N. Frequent Flyer Miles
O. Pets
P. Photo Albums, family videos
Q. Waiver of rights to any property purchased by spouse after agreement is executed but before judgment of divorce becomes final
XI. TAXES
A. How to file for last year of marriage
B. Cooperation if joint filing
C. Use and reporting of available deductions
D. Division of refund or liability
E. Contribution (if joint)
F. Indemnification
G. Cooperation for audit/investigation of prior years' tax returns
H. Capital gains tax consequences for all assets and/or capital loss
I. Adjustment for change in tax laws
XII. DEBTS AND LIABILITIES
A. Type of debt
B. Allocation of responsibility for debts, including debts incurred after agreement is executed but before the judgment of divorce becomes final
C. Indemnification
XIII. ADDITIONAL PROVISIONS TO BE INCLUDED
A. Warranties about full disclosure of finances
B. separate and independent legal advice
C. Procedure for future disputes (mediation clause)
D. Responsibility for payment of mediation fee/legal fees/filing fees
E. Privacy clause
F. Debt payment designated as support and maintenance
G. Promise of no past and future contraction of debt in the other's name
H. Waiver of right to take against will
I. Waiver of right to after-acquired property
J. Right to dispose of property by will
K. Mutual release of all claims
L. Entire agreement (no oral or extrinsic agreements)
M. Acknowledgement of fairness and reasonableness of provisions
N. Massachusetts contract.
O. Severability; the unenforceability of a provision shall not affect validity of other provisions
P. Waiver of provision not waiver of subsequent breach/default of provision
Q. Modification, amendment or waiver in writing to be valid
R. Forever binding and conclusive on heirs, executors, assists
S. Indemnification for breach by breaching party or his/her estate survives death
T. Effect of Bankruptcy
U. Notarization
Note: This checklist was originally published by the Massachusetts Council on Family Mediation
Role of the Divorce Mediator
The Mediation Process
As the mediator, there a number of things going on in my head and on a number of levels. I am trying to assess the participants and the dynamics. I look at body language, tone of voice and their general demeanor at the mediation. It is my job to determine if there is a power imbalance and if so to address it. It is also my job to make sure that each party has the same basic level of understanding and knowledge. If not, I suggest ways that this can happen. Sometimes I suggest experts or outside people that one of the participants can consult to get up to speed.
On another level, I am always assessing my neutrality. If I suggest that one party consult with an outside expert, will that be seen by the other party as favoring that party? Almost anything I do can be taken as biased. In fact, I often tell the couple that I will inevitably be biased. It is unrealistic to think I would not be. What I ask them to do is to inform me if at any time they feel that I am not being neutral.
On another level, I am simply a traffic cop. I need to keep the participants focused and on task. It is my job to redirect the conversation when things get out of hand or become too tangential. At various times, I check in with the couple to make sure that they are comfortable with what is happening in the mediation.
On yet another level I am a problem solver. Ideally, the resolution of disputes and ideas for resolution will come from the parties. There are times however, when I will make some suggestions for possible scenarios for outcomes. Once again, whenever I make suggestions I always have to be careful and make sure that the parties understand that I am not pushing a particular agenda or resolution. This would undoubtedly affect the appearance of my neutrality. There are times however when I see parties struggling to find a solution and I have one in mind because of experience in dealing with a similar situation in the past. In that situation, I will make a suggestion of one more option to consider.
Wrapping up the Mediation Process
Once the parties have reached an agreement, if the parties are not using attorneys, I send the clients a packet which includes all the court forms and financial documents they will need to file with the court and very specific instructions about the court process and how to file the divorce. I will meet with clients for one final meeting in which we review the court papers, instructions for filing and appearing in court, review financial statements to make sure they are accurate and prepared properly.
I review the agreement to make sure both parties fully understand and agree to the provisions and I give clients instructions about signing the agreement and filing the paperwork with the appropriate court. I cannot notarize the agreement for my clients.
Family Resolution Specialty Court
Ask me about the Family Resolutions Specialty Court at the Hampshire Probate and Family Court in Northampton, MA. This is a one-of-a-kind court program for families with children going through the divorce or separation process that is based on a team and child-centered approach.
Is Divorce Mediation Legally Binding?
I hear this question a lot but it is not exactly the right question. Mediation is a voluntary process in which both parties agree to use mediation to help them resolve their dispute. In the case of a divorce, the mediator will help the parties reach an agreement which will then be drafted into a divorce agreement and ultimately presented to the judge for approval.
Let’s go back to the question, “Is Divorce Mediation Legally Binding?” Mediation is different than arbitration. In arbitration, the parties present their dispute to an arbitrator and the arbitrator makes a decision. It is sort of like a trial in front of a private judge. Some arbitrations are binding and some are not. Arbitrations often arise as a result of a contractual provision that requires arbitration in the event of a conflict. The contract will indicate whether the arbitration is binding or not.
Mediation is very different. First, as stated above, mediation is voluntary. Second, the mediator does not make a decision. The mediator’s role is to help the parties discuss the issues and help them reach an agreement. If the parties reach an agreement, the mediator will draft the agreement in a form that the parties can submit to court. In the case of a divorce, the mediator will draft a divorce agreement. In Massachusetts, this is called a “Separation Agreement.” Prior to an agreement being signed by the parties, nothing is binding. Assuming your mediator meets the criteria of the Massachusetts Confidentiality Statute (Massachusetts General Laws chapter 233 section 23c (https://malegislature.gov/laws/generallaws/partiii/titleii/chapter233/section23c) and you have signed a mediation agreement which includes a confidentiality provision, the mediation process and any statements made during mediation are confidential and cannot be used in court. Once the parties have signed the divorce agreement, it becomes a contract and is enforceable as a contract but it is not yet a court order.
The parties will then file their divorce agreement with the court. At the parties’ divorce hearing, the judge will go over the terms of the agreement and will ask the parties a series of questions to make sure they both understand the agreement and believe the agreement is fair and reasonable. It is at the point at which the court approves the agreement as part of the parties’ divorce that it becomes truly binding. At that point, the agreement becomes a court order. If a party violates any terms of the agreement, the other party may choose to try and enforce the provision by bringing a Complaint for Contempt.
Divorce Mediation Process in a Nutshell
Amherst Mediation Services
Divorce Mediation Process in a Nutshell
1. Initial Free Consultation: The mediator and both parties will meet together for an initial free consultation. At this meeting, the mediator will explain the mediation process, discuss fees and cost of mediation, compare mediation with other options and answer questions that either party has about the process or about the mediator.
2. While there is no obligation to start the mediation process following the initial consult, we will set aside time that day so that if you want to start that day, you can. Typically, if the mediation starts that day, the mediator will spend between 30-60 minutes with you getting background information about your situation, basic financial information and information about where you are in the process of divorce or separating. You will be sent home that day with some homework.
3. Following this initial meeting you will be asked to fill out the court financial statement as well as gather certain documents to make sure that we have all the information we need.
4. How many sessions are needed from that point forward and how quickly the process goes is largely in your control. The mediation can take as little as 1-2 more sessions or 5-6 sessions depending on how complicated your situation is and how well the two of you are able to discuss matters outside of the mediation room.
5. Once an agreement is reached and you have had a chance to review the agreement drafted by the mediator, we will have one final meeting in which we will go over the agreement, review the financial statements and court papers which will have been prepared in advance of the final meeting.
6. The mediator will not attend the court hearing with you but will prepare you for the hearing at the last meeting. You will receive detailed instructions about filing the paperwork.
7. After the last meeting, it is up to you to follow through with filing the court papers, including your financial statements, agreement and filing documents.
8. If you have children, you will be required to enroll in a parent education class. This will be necessary before you can get a hearing on your divorce. The mediator will provide you with information about this.
9. It is generally recommended that you hand file your paperwork with the court, rather than mail. You do not both need to file the paperwork with the court. Only one of you needs to drop off the papers. Your mediator will go over your paperwork at the final meeting. If the papers are not in order the clerk’s office will likely reject the filing so it is important to make sure the paperwork is correct and complete.
10. At the hearing, the judge will go over your agreement and financial statements with you and if everything goes well and as expected, the judge will approve your agreement that day.
11. If you filed a joint petition for divorce, the divorce will be final 120 days from when you went to court. You will not however have to go back to court at the end of the 120 days.
12. If you are transferring real estate or retirement accounts or any accounts, it is up to you to follow through with this. Your mediator will not be responsible for following up on these issues (this will be discussed at the final meeting).
13. This is a summary of the process. During your mediation, the mediator will go into a lot more detail about all of these issues.
Valuation of the Marital Home
If you are getting divorced and you own your home, one issue that will certainly need to be addressed is the valuation of your home. The exceptions to this are: 1) If you plan to sell your home; and 2) if you plan to continue to jointly own the home. Let’s discuss these two options first.
If you plan to sell your home in the near future, you will need to decide on a valuation in order to determine your asking price when the home is put on the market. Theoretically, the two of you should be able to agree on this as you will want to maximize the profit (particularly if the plan is to share the net proceeds equally.) The only time this sometimes becomes a problem is if one person is in more of a hurry to sell the house and is willing to sell it at a lower price just so that the house gets sold faster. In the alternative, if one person is living in the house, you need to make sure that the agreement makes provisions for what happens if the house does not sell immediately. An important note here is that you want to be careful of what you include in your divorce agreement as the agreement is a public document. You do not want to publicize, for example, what you and your spouse have agreed to as to sale price and potential future reductions. If this is an issue, you should consider putting that information in a side agreement that is not part of your divorce agreement.
If you plan to continue to jointly own the house, you will not necessarily need a current valuation. In most cases like this, the parties agree that the division of proceeds will occur when the house is sold and will be based on the actual sales price. There are however a whole set of other issues when dividing sales proceeds in the future, such as: do you count contribution one person has made towards paying down the mortgage? What about improvements made? etc. If you plan to divide proceeds of the house in the future based on a future sale, you must be careful to plan for contingencies such as who pays for repairs, maintenance and improvements.
If one of you plans to stay in the house and buy out the other party’s equity, you have several options. First, let’s clarify what “ equity” means. As used here, it usually means the fair market value of the house minus the outstanding mortgage(s). For example, if the house is worth $300,000.00 and the mortgage is $150,000, the equity is $150,000.00.
Short of selling the house, the best way to get a “fair market value” is to hire a certified real estate appraiser. Typically, this will cost between $350-$500 depending on where you live. Certified real estate appraisers have no interest in the property or the price arrived at, and must prepare the evaluation according to accepted criteria. Short of selling the property, hiring a certified real estate appraiser is the closest you will be able to come to a fair market value. Even so, ultimately it is still someone’s best guess at a value and it is not unusual to have two appraisers come up with two different values.
A second option for determining fair market value is to obtain a “market analysis.” These are typically prepared by a real estate broker and although they may look like a certified real estate appraisal, they are not. Often brokers will offer a market analysis for free as a way of establishing a relationship with potential sellers. While a paid certified real estate appraiser has no interest in the valuation, one could argue that a real estate broker has some interest in at least establishing a relationship with the seller. A market analysis is certainly useful information and may also be useful for purposes of comparing with another valuation.
Another option is to use the tax valuation of your city or town. Typically, however, this is not a particularly reliable method and is not the recommended method.
I always suggest that clients look at online sites such as Zillow.com just to see their valuation, for comparison purposes. I would not necessarily rely on Zillow but again, it is more information that is free.
Finally, there is nothing that requires parties to obtain a valuation. If the two of you agree on a valuation and both feel comfortable with that number, you can agree on that number without an outside evaluation.
If you are refinancing, there will be a valuation done by the bank for the refinance. You can rely on that valuation, although some would argue that an appraisal for a bank loan is not the same as a certified appraisal conducted solely for the purpose of obtaining a valuation. And, the timing has to be right. You may want to know what the “equity” in the house is before deciding to refinance. However, if you cannot get the appraisal until after you apply for a refinance you have a conundrum. Depending on the timing, a bank may allow you to use its appraisal company to do the appraisal and the bank will use that appraisal for the refinance if the appraisal was close in time (say within 30 days) to the refinance.
A few other things about establishing a buy-out number for a house are worth noting. When one person buys out the other party, will you factor in the cost of a presumptive realtor’s commission? Sometimes this is done and sometimes it is not. It depends on the situation, the timing and the parties. It is something that you may want to raise with your mediator to discuss. If one person is refinancing, do the parties share the cost or is it paid by the person keeping the house? There is no absolute right or wrong way to do this and it is often dependent on the situation and the parties.
In conclusion, the valuation of the marital home and splitting the equity in the home represents one of the most common issues that comes up in divorces. In addition to the value associated with the home, the sale or division of the marital home is also very emotional for a lot of people. It is thus very important for clients to fully understand the options around valuation of the home before making a decision
Divorce Mediation Cost Savings
Divorce mediation saves money. In many divorces, couples are already stretched beyond their financial means by now having to support two households instead of one. Mediation allows the couple to avoid the high cost of divorce litigation in the following ways:
In litigated divorces, most attorneys require retainers of at least $4,000.00 to $10,000.00 to commence the case. At Amherst Mediation Services, we require no retainer allowing you to have complete control of the cost of your mediation. We will bill you only for time spent and ask that you pay at the end of the session for time spent.
In mediation you will not have to worry about being billed for the hours which are typically spent preparing for and appearing at court motions and hearings.
In mediation you will not be billed for the cost of each of your lawyers speaking with each other.
Information will be gathered in a cooperative fashion rather than the expensive discovery process which includes interrogatories, depositions and motions to compel. You can control how extensive the document exchange needs to be.
A mediated divorce ( including a final agreement and all court paperwork needed typically costs under $3,000.00
The Divorce Agreement and Lawyers
The Agreement
Once the parties have reached an agreement on most or all of the issues in their divorce, I will draft a proposed agreement. Depending on the complexity of the agreement and the level of conflict, there may be some revisions of the agreement at subsequent meetings. When there is a complete agreement I will draft a final divorce agreement. Interestingly and somewhat confusingly, this final agreement is called a "Separation Agreement".
In Massachusetts, the "Separation Agreement" is the divorce agreement. Once the parties have agreed on the terms of the agreement, they will file this agreement with the court and ask the court to have the agreement incorporated into the judgment of the court. Clients are strongly encouraged to have the agreement reviewed by independent attorneys for each of them before signing the agreement. When I am drafting the agreement, I am putting on papers what the clients have agreed. I am not acting as the attorney for either or both.
Even though many mediation participants come to mediation with the intention of not seeing an attorney, I strongly encourage each client to do so. As mediator I do not provide the participants with legal advice, although, I do provide plenty of legal information. A consulting lawyer will be able to review their proposed agreement and advise them about their individual rights and whether in that lawyer's opinion the agreement is fair or not. After consulting with a lawyer, a client may come back to mediation and discuss proposed changes. While difficult for the other party, ultimately, this is good for the process. With information from his or her attorney, parties have the information they need to make an informed decision.
Massachusetts Divorce in a Nutshell
The process of divorce can be an extremely difficult and traumatic experience, emotionally and financially. To add to that, divorce necessitates decisions about almost every major aspect of your life including housing, employment, your children, health insurance, retirement taxes, etc. In fact, it is hard to imagine other times in one's life when a person has to make so many major life decisions, often while in a state of depression, anxiety, shock and/or anger.
Even if you are proceeding with a mediated divorce, understanding the divorce process and options for resolving your divorce is at least one step towards making the divorce process easier. What follows are some facts and information that will help you get the lay of the land if you are going through or contemplating a divorce and considering mediation.
1. Massachusetts is a "no-fault" state. This means that a person does not have to find or prove fault with his or her spouse to get divorced. It is enough that one person has concluded that the marriage has irretrievably broken down. As a practical matter, what this means is that neither party can prevent the divorce from happening. That is different, however, from the issues of what the custodial and financial terms will be. That will be governed either by the agreement of the parties or the judgment of the court if the parties do not agree.
2. In most cases the conduct of the parties will not be particularly relevant or important to the resolution of the divorce. Except in cases where there has been financial misconduct or misconduct which affects the children, the court will not be particularly interested in the conduct of the parties. The court is primarily interested in dealing with the finances of the parties and dealing with parenting issues.
3. A divorce can be started in two ways. A "1B" divorce (1B stands for the section of General Laws chapter 208 covering this area of law) is commenced when one party files a Complaint for Divorce in the Probate and Family Court. Typically, a copy of the complaint is then served upon the spouse by sheriff (unless he or she agrees to voluntarily accept service) and the spouse has 20 days to file an answer.
4. A "1A" divorce is also known as a joint petition for divorce or an uncontested divorce. This action is filed by both parties together and must be filed with a signed divorce agreement (often known as a "Separation Agreement"). The agreement and petition are filed with various other court documents including a financial statement signed by each of the parties. An original marriage certificate will also need to be filed.
5. Once a 1B divorce action is filed, there is an automatic restraining order against dissipation or transfer of assets or insurances. This means that after the divorce is filed, neither party can move, transfer, sell, assign or do anything with marital assets and with any insurance coverages without the consent of the other person or permission of the court.
6. As part of the divorce process, you will need to fill out a financial statement which lists your income, expenses, assets and liabilities. This form is extremely important and should be as accurate as possible. If you earn over $75,000.00 per year, you will need to fill out a long form financial statement. Otherwise you would fill out the short form. The 1B divorce process will often also include a "discovery process" in which the attorneys will send out requests for certain documents and interrogatories (written questions) pertaining to issues relevant to the divorce. In mediation, the "discovery" process is voluntary and by agreement.
7. Sometimes, if there is an immediate need, one of the parties will bring a Motion for Temporary Orders. This type of motion often involves a request that the court set a child support amount, alimony, health insurance and custodial arrangements pending a final hearing. If the parties are not able to resolve these issues on their own, the matter will be heard by a judge and the judge will enter a temporary order pending a final judgment of divorce.
8. In Massachusetts, the level of child support is governed by the Massachusetts Child Support Guidelines. These Guidelines provide a formula for calculating what amount must be paid. The Guidelines technically do not apply to situations where the combined income is over $400,000.00. That does not mean that there is no child support in those cases, it just means that the child support guidelines calculator only goes up to a combined income of $400,000.00. When going to court, if there are children the court will always require a Child Support Guidelines Worksheet. The parties can however deviate from the Guidelines.
9. Alimony refers to spousal support. The divorcing couple must always inform the court whether they wish to have alimony or whether they waive it. Alimony is the payment from one spouse to the other spouse for his or her support. It can be ordered in addition to child support depending on the need of the spouse seeking it and the ability of the spouse to pay it. In 2012 Massachusetts adopted Alimony Guidelines. In mediation, the couple will decide and agree whether to apply the guidelines or make their own decision about alimony.
10. Massachusetts is an "equitable distribution" state. That means that whether or not an asset is in an individual name or joint names is irrelevant in the first instance. All of your property, whether joint or individual, is considered marital property. If the parties cannot decide, the court will decide whether an assets should not be considered marital property and in what percentage to allocate the assets. The judge considers a series of factors such as age, health, vocational skills, income, contribution during the marriage, potential for future assets, etc. to determine whether the assets should be divided equally or in some other manner. In a long-term marriage where the assets have been accumulated by the couple over the years of the marriage, it is not uncommon for the court to divide the assets equally.
11. If you have children and you are getting divorced pursuant to a 1B divorce, you must take a parent education class. See https://www.mass.gov/parent-education. You will not be able to obtain a hearing on your divorce unless you have both taken this class. The class covers divorce and children, parenting dos and don'ts, and how to help children cope with divorce. Fee waivers are available. You are not required to take the parent education course if you are filing a joint petition for divorce.
12. The fact that a case may initially be "contested" does not mean it will not settle. Over 95% of divorce cases settle. However, there may be a period of negotiation and conflict before the case ultimately is resolved through negotiation. If the case does not settle, then it will eventually be "marked up" (scheduled) for a divorce trial before a judge. A trial will involve the judge hearing testimony from witnesses (husband, wife, and any other relevant people) reviewing exhibits (documents such as tax returns) and ultimately deciding all aspects of the case. It is fair to say that a judgment made by a court will never be as precise and specific as a negotiated agreement. Some have likened it to conducting surgery with a hatchet versus using a scalpel.
13. In most counties, there is a significant delay before you can obtain a trial date. You can usually assume that if your case is contested, you will not have a trial for at least one year from when you file. Then there can be a delay in getting the judge's decision.
14. Mediation is an alternative to the litigation process. Mediation is a process wherein a neutral third party works with people to help them reach resolution on issues or conflicts that may exist between them. The term "mediation" encompasses various styles of mediation ranging from "transformative" to "directive." The varying styles often have to do with how much the mediator will interject or offer his or her own opinions to the parties. The role of the mediator is to facilitate a dialogue between the parties and to insure that they have sufficient information, legal, financial, etc. to make an informed decision and agreement.
15. There are many advantages to mediation. The mediation process is usually far less expensive than litigation. The parties control the pace of the divorce rather than being guided by an arbitrary court process. Mediation tends to improve communication between couples rather than destroy it. Mediation allows couples to craft an agreement that is unique to their circumstances.
16. If a couple decides to use mediation, when they reach an agreement, the mediator will draft a Separation Agreement for them which they can eventually take to court and have the court approve. Even if the parties use mediation, they are encouraged to consult with their own individual attorney to discuss the terms of the proposed settlement from each of their individual perspective.
17. There are other alternative dispute resolution systems in addition to mediation, such as arbitration, conciliation and collaborative law. Whether going through the divorce through the courts or through alternative dispute resolution, it is important to take care of yourself and keep yourself informed. There are many books about divorce and many which provide assistance on how to help your children cope with your divorce. If you have children, the biggest predictor for how your children will do in the long term is not who has custody or what the schedule is, but rather how well the parents work together. Consider therapy for yourself and your children. The more support you can get the better.
Divorce Mediation Behind the Scenes: Initial Contact
First Call
Typically, one of the parties calls or emails my office asking about the mediation process. If it is a phone call, I will generally ask the person calling me to send me an email and cc their spouse and include the spouse’s name. During this call I may answer some basic questions about mediation and will make sure that there is no conflict of interest. In order to maintain neutrality and the appearance of neutrality, it is essential to make sure that there are no prior business, social or client relationships between the parties and the mediator which might affect the mediator’s neutrality. If there has been a prior relationship the parties and the mediator will have to determine if proceeding with the mediation would be appropriate. In order to maintain complete transparency, I will not discuss any substantive issues or facts with only one client.
In response to an email inquiry, I will again ask the person contacting me to send me an email and cc their spouse and include the spouse’s name.
Once I have both parties’ email, I will send an email to both parties with a link to my online calendar where they can schedule a free initial consultation. The meeting can be in person or by zoom. At that initial consult, I will explain the process of mediation and answer questions about the process, cost, timing etc.
Initial Free consultation
At the initial free consultation, I explain the process and a little about timing, the expected cost and how long to expect the process to take. I also usually try to get some idea of what sort of issues the couple has and what sort of agreements they have already reached. I give the participants an opportunity to ask questions about the process. This usually takes between 15 to 30 minutes. I give the couple the option of starting the mediation right away stopping that day and taking some time to decide if they want to start.
If the parties want to start right away, I go over the mediation fee agreement and have them sign it ( either in person or electronically if we are meeting by zoom). If they choose to start, I begin charging them after they sign the mediation agreement. The fee agreement explains how much I charge, how they will be billed and reiterates the mediation process.
If we start that day, I generally spend about 30-45 minutes collecting basic information like full names, date of marriage, date of separation , dates of birth, names and dates of birth of children and I gather very basic information about their finances and where they are in the process. What have they discussed, what are the general areas of agreement? Are there areas of disagreement? And, what other information do we need to gather.
Free Informational Packet
If the participants choose to start their mediation session on another day, I email them a packet which includes information about divorce and mediation.
Goals of Divorce Mediation
The goal in divorce mediation is to provide clients with the information and process they need to reach an informed decision about their divorce that conserves their financial resources, minimizes anxiety and increases rather than decreases communication. This is accomplished in the following ways:
The mediator provides clients with information about Massachusetts divorce law.
The mediator provides clients with a detailed list of the issues they will need to address in their separation agreement.
The mediator meets with the clients together and helps facilitate communication.
The mediator provides clients with a detailed packet of court documents and forms that they will need to file their divorce in court.
The mediator provides clients with a detailed letter at the end of the mediation explaining what happens in court, what the judge will ask, where to go, what to file and what to expect. In most cases, if clients wants, the mediator will also prepare all the court papers they will need to initiate the divorce process in court.
The mediator will draft a divorce agreement for the clients when they have reached an agreement which they can take to court and present to the judge.
What is Divorce Mediation?
What is Divorce Mediation?
Mediation is a process in which a third party neutral works with two or more people to help them reach resolution on issues or conflicts that may exist between them. In divorce mediation, the mediator works with the divorcing couple to help the couple reach a resolution on the various issues in their divorce. The term "mediation" encompasses various styles of mediation ranging from transformative to directive. The varying styles often have to do with how much the mediator will interject or offer his or her own opinions to the parties. Typically, in a divorce mediation, the mediator will not offer his or her opinions and will not give advice to the participants. However, there are divorce mediators who not only offer their opinions but also actively negotiate between the parties to attempt to work out a resolution. This is sometimes called "conciliation" or "case evaluation." It is important for a couple engaging in the mediation to know which style the practitioner uses.
In the more traditional divorce mediation, the role of the mediator is to facilitate a dialogue between the parties and to insure that they have sufficient information, legal, financial etc., to make an informed decision and agreement. The mediator can provide the parties with legal information. This is distinguished from legal advice. Giving legal advice endangers the mediator's neutrality. At Amherst Mediation Services, we will provide you with a great deal of legal information but we will not provide legal advice. We strongly encourage clients to each speak with an attorney to obtain legal advice.
Why Mediation?
More than 30 years ago I reached the conclusion that the litigation model was, in my estimation, not particularly well suited to dealing with one of the most difficult and traumatic times for people. During a divorce, people are often dealing with every major aspect of their life while going through divorce. The problem however is that there are many people vying for the judge's time and energy. In turn the judge has very little time to hear and fully understand the litigant's situation. The pace and timing of the client's divorce is guided by the court's schedule, judge's availability as well as the schedule of the lawyers involved. This often leads to long delays. There is also very little predictability when going to court. How a case turns out may very well depend on who is the judge, who the lawyers are, the particular relationship between the lawyers and a host of other factors which are outside of the client's control. Secondly, litigating a divorce, particularly for clients who are middle class or low income, is extremely expensive. Most lawyers require significant retainers to commence the case. One trip to court can use up a significant chunk of the retainer.
Typically, clients appear in court with many other litigants and spend several hours waiting to see the judge. Mediation is much more efficient and much less expensive. Litigation encourages more animosity and less communication. The contested divorce will undoubtedly involve attempts to discredit the other party. Particularly when there are children involved, the litigation system can have a devastating impact on the children as a result of the winner take all attitude. Unfortunately there is rarely a winner. Usually, everyone loses, including the children. Mediation encourages communication, cooperation and listening. Mediation focuses on brainstorming of ideas for mutual gain rather than destruction of the other person. Mediation highlights the fact that the two participants will remain connected for the rest of their lives through their children and thus must find a way to continue to work with each other in an effective and respectful manner. Unlike litigation, mediations occur behind closed doors and are not open for the public to see.
