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.
First Mediation Session and Beyond..
First mediation session
At the first session I explain to the couple that I will give them a list of issues they will need to cover and will help them make their way through discussion of these issues. When appropriate I provide them with information that might be helpful in resolving their issues. I will also point out issues or concerns, such as the tax ramifications of their tentative agreement. Often these are things that they had not considered and might affect their agreement. I will sometimes suggest that they consult with someone else if there is an issue that is outside of my area of expertise (sophisticated tax planning for instance).
The first session varies depending on how many issues there are. There are occasions when people come in and have resolved almost all the issues. In those cases I make sure that their agreement is based on an understanding of the law and is based on complete information about the finances etc. In other words, in addition to making sure they have covered all the issues, my concern is primarily how they got to their agreement. Are either of them under any misconceptions about the law or facts?
If the parties have issues to be resolved, I start by collecting a lot of information about them and their family. At some point after the first mediation session, the couple will hopefully either have sent or brought in the financial information I have requested. This includes tax returns, bank statements, statements of accounts and a court financial statement. I will make sure each party has copies of the documents and each other's financial statements. After the fact gathering, we make a list of the outstanding issues and time permitting, we start tackling the issues. What documents are to be exchanged will be determined by the couple. One of the4 advantages of mediation is that the participants are not required to exchanged years of financial documents as they are if their file a contested divorce action. Some documents ( like the court financial statement) are required. I will go through all of that with the couple.
At the end of the first session, I will give the couple homework to complete. This includes filling out the court financial statement ( including instructions on how to fill it out properly) and going over any steps they may need to take before we meet again. Do they need to explore refinancing? Do they need to talk to a bank about what they qualify for if they want to refinance? Do we need retirement information? Do we need a house appraisal?
Subsequent sessions
How long will the mediation take? I hear this question at almost every mediation. The answer- it depends! It depends on the complexity of the finances or the parenting plan or on the number of issues or on the level of emotion between the parties. Typically, mediations take between 3-5 sessions from start to finish. This could be over the span of a month or over the span of two years. Sometimes, people need to take the time. Sometimes, they need to resolve the divorce quickly. Unlike court, participants in mediation are in complete control of the schedule. I encourage the couple to take as much time as they need. A common conflict that arises is that one spouse wants to move at a much faster pace than the other. This may be the topic of our first mediation session.
At subsequent sessions, we start to address the specific issues. I usually start by addressing any burning issues that must be resolved immediately. For instance, at the start of a divorce, one party may be moving out. There are concerns about how that will happen, who will pay the bills and what the parenting plan will be. The parties may need to work on a temporary plan before they arrive at a final divorce agreement. Once the immediate issues are resolved, both parties may be in a better position to begin to deal with the larger issues.
Unless there are emergency issues, I typically start by discussing the parenting arrangements and issues pertaining to the children and then move on to property division. I emphasize to the participants that all of the issues are intertwined and that they have the freedom to change their minds and should keep open minds until they have a comprehensive agreement.
I provide participants with a list of issues that will need to be addressed in their separation agreement and encourage them to do as much as they can outside of the mediation. Again, depending on the couple, some people are able to communicate with each other and accomplish a lot outside of the mediation room. Others come to mediation because it is the only place they can communicate.
Final session
Once the couple has arrived at a final agreement and has reviewed the separation agreement that I have drafted, we will schedule a final meeting. At this meeting, I will go through the agreement, the court papers I have prepared, the financial statements and the process for filing and what to expect at the hearing. I have found that this meeting is extremely important and helpful. Most people have not been to court before. The court has very specific requirements and if there are inconsistencies or errors in the paperwork, the court will reject the paperwork filed until it is done properly. Also, it is helpful for clients to know what to expect when they have their hearing.
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.
