Massachusetts Divorce Mediation FAQ
Massachusetts Divorce Mediation FAQ
How long does mediation take? How many sessions are necessary?
What is mediation? Just how does mediation work?
Do we have to have grounds for divorce?
We have children. How do we determine who gets custody? Where will they live?
How do we figure out how much is to be paid for child support?
How long does one continue to pay/receive child support?
How does one know whether or not alimony should be paid and if it is to be paid, how much?
What do we do about our home? Who continues to live there? Do we sell? When do we sell?
Does one of us have to move out of the house?
What if one of us wants to buy out the other’s interest in the house? How does that work?
This is a valid and important question. Mediators charge an hourly fee for their services. My current rate is $285.00 per hour. Each session is usually two hours. I find that if sessions extend beyond two hours, parties’ powers of concentration, levels of energy and effective thinking begin to fade, and that the time beyond two hours is often less productive. I am flexible and there may be times when a shorter or longer session is justified. Most of the time the parties share the cost of each session.
In addition to the mediator’s fee, the parties may want to consult with his or her attorney and an expense for same will be incurred. Most lawyers will not charge a large retainer when their services are limited to counseling a client with respect to the mediation and reviewing the Separation Agreement. They will charge an agreed upon hourly fee. If requested, I will provide the husband and wife with a list of names of well-qualified family-law lawyers who are “mediation savvy” and reasonable with respect to their hourly rates. After all, one of my major goals is to help clients control their own case and keep their fees and costs at a minimum level..
How long does mediation take? How many sessions are necessary?
The answer to both of these questions is that it varies. Depending upon the complexity of the issues involved and the parties’ willingness to put a lot of personal matters aside and to concentrate upon solutions will determine how many sessions are required before a final agreement is reached. I encourage the husband and wife to discuss issues between sessions in order to reduce time with the mediator. The more they can agree upon between meetings, the fewer sessions are necessary and thereby less money is spent on mediation fees. I use my training and years of experience as a lawyer and mediator to motivate people to cooperate and reach agreements regarding their differences.
What is mediation? Just how does mediation work?
Mediation is an alternative to the traditional method of going through the court system and suffering its delays, controls, inadequate staffing, and the tension often associated with court hearings and procedures. Mediation is a confidential process by which a neutral person, trained and with expertise, and preferably certified as a mediator assists the wife and husband in attaining a mutually agreeable resolution of their differences. The parties meet together with the mediator at a mutually agreeable time, scheduling according to their own business and personal schedules; not according to a court’s orders. The meetings take place in the mediator’s office or other setting agreed upon by everyone. During the initial session, the mediator will ask a series of questions so that the mediator, husband and wife each gain an understanding of the issues that need to be resolved. The mediator will give the parties a broad overview of the applicable law and will outline the issues which must be discussed and eventually agreed upon in light of the particular situation. The mediator will provide information as appropriate regarding the applicable law, so that parties will make informed decisions.
It is an open process and each party will be given ample time at each session to express concerns, needs, goals, and suggested resolutions. The mediator helps to facilitate conversations so that they remain on point and are focused toward resolution. Each party must contribute and feel that he/she is given ample time and opportunity in which to express his/her thoughts.
I have a proven track record of creating an atmosphere that it conducive to open and honest exchanges of feelings and ideas.
After all, the final agreement must be a reflection and statement of the parties…it is their case and they are the people who must live with the terms of the agreement. Having said that, from time to time, the mediator will make recommendations and suggestions, when appropriate, in an effort to guide the parties toward solutions and move them forward toward reaching an agreement. With the parties’ permission, I frequently offer my opinion, based upon experience and knowledge, as to how I think a judge might resolve a particular stalemate if the matter were presented to a court.
For the most part, the sessions are joint. However, with the parties’ mutual consent, it may sometimes be helpful for the mediator to have a separate session with each individual. Such sessions may be used to help break a stalemate or to assist the mediator in gaining greater insight into each party’s concerns.
At the conclusion of the mediation sessions, I prepare an extensive written agreement which addresses all of the issues and the agreed upon resolutions. As mentioned earlier, the Final Separation Agreement is signed by the wife and husband, and is presented to the court for its approval. It is filed with the papers in your case.
I’m really not sure just what we have in terms of money. My husband/wife is secretive. How can I find out what we have?
Clients are required by the mediator to provide each other with complete information regarding their incomes, assets, expenses, and liabilities. Mediation only works when there is full disclosure. Amongst the papers that the court will require each party to file along with the Separation Agreement is a Financial Statement. This is a particular form provided by the court which calls for detailed financial information from the husband and wife and it must be signed by each party under the pains and penalties of perjury. The mediator will require the completion and mutual exchange of this form prior to finalizing any agreement. In addition, the mediator will require that each party have full access to copies of the tax returns that have been filed in recent years. And the signed Separation Agreement will contain language whereby each party acknowledges that he/she has fully disclosed all financial information to the other. Should it be determined that either party lied or otherwise withheld financial information, the Agreement may be nullified based upon fraud.
All of this is made abundantly clear by the mediator during the process.
Do we have to have grounds for divorce?
No. In Massachusetts if a party wants to become divorced the law will not stand in his/her way. We have what is commonly referred to as “no fault divorce.” There is no need for parties to burden themselves or the court with details of their personal lives and what behavior or incidents led to the end of the marriage. The parties may simply allege that “an irretrievable breakdown of the marriage under M.G.L. (Massachusetts General Laws) Ch. 208, Sec 1A occurred and continues to exist.”
Once an agreement is reached, the parties may file a simple form provided by the court entitled “Joint Petition For Divorce Under M.G.L. Ch. 208, Sec 1A.”
No. However, mediators will advise that you have the absolute right to consult with a lawyer. It may be advisable for you to engage a lawyer for the limited purpose of (1) advising you of your rights (2) explaining applicable law (3) suggesting strategy you might follow to enhance your position; and (4) to review the Separation Agreement before you sign it.
It is unnecessary to retain a lawyer in the “traditional” sense. If you do not proceed with mediation, one of the alternatives is for each party to retain his/her own lawyer and process the case through the court system. In those situations, lawyers usually charge a retainer and bill on an hourly basis. One of the positive aspects of mediation is that it is not necessary to go to that expense.
Consulting with a lawyer during the mediation process and having him/her review the Separation Agreement is not nearly as costly as those situations where one retains a lawyer to take the case through the court system from day one. If either party wishes, the mediator will provide a list of names of Family Law attorneys who are familiar with and favorable to the mediation process.
We have children. How do we determine who gets custody? Where will they live?
Whatever arrangement is in the best interests of the children.
With respect to “Parenting Time” regarding minor children, you should be aware that the courts encourage parents to have “Joint Legal Custody.” This means that no matter with whom the children have their primary residence, each parent has equal responsibility and rights for making all major decisions. Parents are encouraged to confer with each other regarding actions that need to be taken with respect to the best interests of the children.
The courts want each parent to be actively involved in the lives of their children. Children need the guidance and love of both mom and dad.
Parents will be encouraged by the mediator to negotiate the question with whom the children shall have their primary residence based upon what is best for the children. Many people may agree upon “shared and split physical custody,” the effect of which is that the children spend an equal amount of “waking” time with each parent. Others may agree that the children continue to live the bulk of the time in what has been the family household, and that the “non-custodial” parent have agreed upon visitation. When the children have their primary residence with one parent, the courts generally expect that the children will spend approximately one-third of their time with the other parent. The various options for Parenting Plans will depend largely upon the ages of the children, their school obligations and extra- curricular activities, and the circumstances of each parent.
The mediator will guide the parents through the various “Parenting Time” options, including but not limited to discussions of holidays and vacations. It is important that “Parenting Time” be discussed thoroughly and spelled out in detail in the Agreement.
How do we figure out how much is to be paid for child support?
Agreement where the payments are less than the amount provided by the Guidelines. There are services online that will calculate the Guideline amounts.
In addition to child support, the parties must consider “Other Child-Related Expenses.” These expenses may include without limitation extra-curricular activities, private school, post secondary education, summer camps, special school related trips, special events, Bhat Mitzvahs, Bar Mtizvahs, confirmations, school formals, tutoring, music lessons, dance lessons, drama lessons, sports equipments and private coaching. These and other additional expenses over and above the day-to-day needs of the children are discussed in detail and the mediator will help the parties to determine an appropriate and affordable amount to be provided by one or both parents.
The mediator may also discuss situations where the parties may deviate from the Child Support Guidelines. He will advise you that a court would require four specific findings to determine that deviation is warranted: (1) what the amount of support would be if the Guidelines are applied; (2) a finding that the Child Support Guidelines amount would be unjust or inappropriate under the circumstances; (3) whatever specific facts justify departure from applying the Guidelines; and (4) that the departure is consistent with the best interests of the child.
Bear in mind that child support payments are not taxable to the recipient and are not tax deductible to the payer..
How long does one continue to pay/receive child support?
Until emancipation. Children are considered to be minors and legally dependent upon their parents for monetary support until age 18. In addition, parents may have the obligation to provide maintenance, support and education for a child up to the age of 21 “who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance” (Massachusetts General Laws, Ch. 208, Section 28). And if a child is a full time student in college, he/she may not be considered emancipated until the age of 23. The parents may agree to extend the period of time during which the child shall not be deemed emancipated, but a court will not approve of an Agreement where the parties attempt to undermine the language and intent of Mass G.L. Ch.208, Section 28. The mediator must be careful in defining the terms of emancipation in the Separation Agreement and he/she should articulate the conditions under which emancipation shall be deemed to occur. These conditions shall include the above statutory requirements as well as others that deal with marriage, entry into the military service, engaging in full time work after age 18, death.
How does one know whether or not alimony should be paid and if it is to be paid, how much?
There are many determining factors with respect to the consideration of alimony. Is one spouse economically disadvantaged? Are both spouses working? Are their gross incomes close to one another or is there significant disparity? How great is the difference? Are there age and health considerations? Is child support being paid? Is there available income with which to provide alimony?
The husband and wife must also be aware that alimony payments are tax deductible to the payer and taxable income to the recipient.
Depending upon their circumstances, the parties may agree whether or not alimony is appropriate, and, if it is, how much and for how long a time it is to be provided. The courts do not want to see a spouse disadvantaged because of the fact that during the marriage that spouse enabled the other to further his/her career while the other devoted himself or herself to taking care of the children and household. The courts will take into consideration those situations where “one spouse has sacrificed career opportunities during the marriage in order to raise children and/or support the career enhancement of the other spouse.” (“The Place of Alimony in the Scheme of Things,” Massachusetts Family Law Journal, the Honorable Edward M. Ginsburg). The courts take the position that that spouse should not be disadvantaged in terms of divorce monetary orders.
Frequently, the parties will agree that alimony shall not be paid until such time as child support has ended. To include alimony in addition to child support may, in some cases, be too burdensome. If alimony is to be paid, the parties may agree that it not start until child support has been completed. Some parties may agree to allocate some of the child support payments as alimony. Alimony is tax deductible to the payer and taxable income to the recipient. Child Support is not tax deductible nor is it taxable income. Bear in mind that the standard of living of the child may not be diminished by the characterization of support as alimony. “The net after-tax amount of child support characterized as alimony must be no less than the amount of Child Support that the Court would have ordered”( Report of the Child Support Guidelines Task Force, October 2008).
In terms of determining how long alimony might be paid, one should consider the length of the marriage. The courts seem to be in agreement that there are three categories of marriages with respect to duration: (1) Short-term, which is generally a marriage up to 5 years; (2) Intermediate, which is generally a marriage between 5 and 15 years; (3) Long-term, which includes marriages of 15 years and more. Most agree that the spouse who has essentially taken care of the children and household, and has not been in the work place by mutual agreement (express or implied), and whose marriage is “long-term,” should receive “ongoing support (alimony) for an indefinite time in an amount sufficient for both spouses to maintain as closely as possible the standard of living enjoyed during the marriage” (“The Place of Alimony in the Scheme of Things,” supra).
Absent unusual health issues, and taking into consideration the ages of the husband and wife, a short-term marriage generally will not call for the payment of alimony. And if circumstances are such that alimony is appropriate (because of health or other extraordinary reasons) the parties may agree to limit the time period for which it is paid, keeping in mind that the courts usually limit alimony in short-term marriages for a period of time not to exceed half the number of years of the marriage.
With respect to the “intermediate” marriages, many judges will not order the duration of alimony to exceed the number of years of the marriage.
The determination as to whether or not alimony is appropriate will always be dependent upon the financial circumstances of each party, including the division of the assets and the respective gross incomes.
The determining factor regarding alimony is the available income. The mediator will help the parties to reach an accord based upon an equitable allocation of the available income. The need of the parties must be adjusted in accordance with the income. And the mediator’s familiarity with what judges are likely to order based upon the factors of each individual case will be invaluable in guiding the parties with respect to alimony issues.
What do we do about our home? Who continues to live there? Do we sell? When do we sell?
These questions are amongst the most important with which the parties will deal. After all is said and done, the marital house is most always our most significant asset. In our current economic situation, it is well known just how difficult the real estate market has become. For the most part, values have declined and the bank situation is such that mortgages are more difficult to obtain…whether the parties seek to re-finance or to buy a home with a mortgage loan. Consequently, the mediator’s role becomes crucial in helping to guide the couple with respect to what to do about the house.
Children are paramount. Their ages, school and peer needs must be given significant consideration in determining what to do about the house. If they are under 18, it may be wise to have them remain with one of the parents in the marital home at least until such time as the youngest completes high school. There is no hard and fast rule as to which parent shall remain in the home with the children. Practical considerations, including work schedules, will be in the mix. The mediator will be able to offer suggestions, reminding the parents that if the question were put to a court its determination will be based upon what is in the best interests of the children. It may make sense for the parties to agree that whichever of them has been the childrens’ primary care taker remain in the house with the children for an agreed upon period of time. Their stability and happiness is paramount. Mortgage, real estate taxes, and maintenance costs must be discussed so that payment of same is specifically agreed upon. Certainly, the respective incomes of the parties will be a major determining factor as to who pays what and how much.
The parties must educate themselves regarding the real estate market in their town and neighborhood. Some locations with highly desirable school systems, for example, may not be suffering nearly as much as other areas with respect to value. A mediator may suggest that the parties engage a well-qualified real estate appraiser (as opposed to real estate brokers whose primary interest is to acquire inventory and sell houses) to conduct an analysis of existing market conditions and recent sales and then offer an opinion regarding fair market value of the property in the current market.
If the children’s needs are not such that remaining in the family home is paramount, the husband and wife may still want to wait until the real estate market recovers sufficiently so that greater value will be realized from a sale.
Once the parties receive a well qualified opinion regarding fair market value, they must then agree upon their “asking” price and their “take” price. They must agree upon selection of a real estate broker (unless they are going to attempt to sell without a broker), and negotiate just what improvements need be done to make the house marketable and attractive to potential buyers.
Capital gains tax must be discussed. A mediator will frequently advise the parties to consult their accountant so that they understand the tax ramifications involved with selling the house. The parties should be aware that the tax law defines a principal residence as the home where you have lived for any two of the last five years.
This is particularly important in those cases where one of the parties has moved from the marital home. If you sell your principal residence, you are allowed to exclude up to $250,000 of the gain from taxable income if you are single ( i.e.after you become divorced).
However, the exclusion is $500,000 for a married couple. This gives rise to the consideration to sell (after considering all other factors) while the parties are still married. Other considerations may outweigh the benefit you may attain by selling while still married. Running the numbers and weighing the other factors with your accountant or tax lawyer and the mediator will help you to make an informed decision.
A well-crafted Separation Agreement will spell out all of the details regarding the sale of the house, including the time for the sale, selection of an appraiser, and all expenses related to the sale, including broker’s commission, discharge of the mortgage, payment of outstanding real estate taxes, attorneys’ fees, fix-up costs and any other debts that the parties agree to pay from the gross proceeds of the sale.
Does one of us have to move out of the house?
No, unless the presence of a party is a clear threat and danger to the rest of the family. Emotions and the deterioration of the marital relationship will, more often than not, dictate that either the wife or husband ought to move. However, recognizing the current economic situations in people’s lives today, some divorcing couples may negotiate a mutual sharing of the house for a designated period of time. The old cliché that “two can live cheaper than one” may be more applicable than ever. Certainly, the physical set-up, number of bedrooms and bathrooms available for separate use, privacy issues, communication issues, the state of civility between the parties, and the impact upon the children are factors to be considered. With the mediator’s objective and neutral status, he/she will be able to offer advice as to whether or not house-sharing makes sense and assist in determining the details of such an arrangement.
If the spouse who remains in the house qualifies for a new mortgage, a “cash-out” refinance may allow him/her to compensate the spouse who has moved by drawing cash out of the equity of the property.
What if one of us wants to buy out the other’s interest in the house? How does that work?
If one of the parties is in a position to buy out the other’s ownership in the property and they are both agreeable to doing so, this is certainly an option. The mediator will assist in discussing the pros and cons as well as in running the numbers.
Let’s assume that a mutually agreed upon real estate appraiser has given the opinion that the fair market value of the marital home is $800,000. Let us further assume that the outstanding balance on the mortgage is $264,000. This would mean that the equity in the house is the difference: $536,000. Assuming that it is a long term marriage (approximately 15 years or more) and the parties have agreed upon a 50-50 division of the assets, the buy-out figure would be $268,000 (half of the equity already belongs to the buyer). There would not be a capital gains tax because transfers incidental to divorce are not subject to same.
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