Choosing Divorce Mediation

If you are considering divorce, you may be intrigued with the idea of mediation. For the right couple, mediation can certainly be an effective tool for reducing the acrimony—and cost—of a divorce. Whether that is true for you will depend upon a variety of factors, including the level of trust between you, the complexity of your issues, and the quality of your communication with each other.
Mediation is an unregulated profession, i.e., some mediators are attorneys, and some are well-trained, but some are neither. Choose a mediator with care, with attention not only to qualifications but also to temperament. Mediation, like divorce representation, involves a fair degree of discussion of intimate personal and financial details, and it is important that you are comfortable with the process and the person. If you choose mediation, you should still have individual legal advice, even if just to review the results of the mediation, because the mediator does not represent either person: his or her role is to assist the couple in coming to an agreement, not to assess whether that agreement is in either party’s best interest. Moreover, even an agreement accepted by both parties must be approved by the judge; an incomplete or otherwise inappropriate agreement can be rejected at the time of final hearing, which is a result that neither party desires. Any good mediator will advise participants to retain their own counsel, for that very reason.
Attorney Sullivan is available not only as a trained and experienced mediator, but also to advise you through mediation, to ensure that the mediated agreement is in your best interest, is drafted appropriately, and can be accepted by the Court.

Will mediation work for me?

If used properly, mediation in a divorce or post-divorce case can minimize both cost and acrimony. Another benefit of mediation is the ability to craft a creative agreement that suits the needs of your family. Are you and your spouse (or ex-spouse) on a level playing field, meaning that neither of you will attempt to use mediation to dominate the other? If so, then mediation may be for you. Ideally, your mediator will be an experienced attorney with mediation training. Also, mediation does not negate the need for each of you to have independent counsel, if only to review the resulting agreement to ensure that it serves your best interests.

Mediation

If used properly, mediation in a divorce or post-divorce case can minimize both cost and acrimony. Another benefit of mediation is the ability to craft a creative agreement that suits the needs of your family. Are you and your spouse (or ex-spouse) on a level playing field, meaning that neither of you will attempt to use mediation to dominate the other? If so, then mediation may be for you. Ideally, your mediator will be an experienced attorney with mediation training. Also, mediation does not negate the need for each of you to have independent counsel, if only to review the resulting agreement to ensure that it serves your best interests.

Divorce and the family business

When there is a family business, whether one or both spouses operate the business, it is important to determine its value. Depending upon the size and type of business, it may have a very significant value or a negligent value. A specialized appraiser can speak with the business owner, examine the business financial records, and perform an analysis of the value. Often, the appraiser can provide an indication at the inception of his or her work as to the likelihood that the business has significant value. A divorce attorney works closely with the appraiser to ensure access to a appropriate and complete set of information for the appraisal. Of course, a business also provides a stream of income; if the parties disagree about the extent of that income, the appraiser may also be retained to analyze the owner income.

I am recently separated; how will I know whether I will receive alimony, and for how long?

Massachusetts substantially modified its alimony law in 2012.  As a result, courts were provided with more guidance about the circumstances under which alimony should be awarded, the length of time that alimony should be paid, and the events that should trigger a termination, reduction or suspension of alimony.  Typically, alimony will not exceed the recipient’s need or 30 to 35% of the difference in the parties’ gross incomes.  However, there are exceptions, and the court may deviate from that formula under some circumstances.  The duration of alimony typically depends upon the length of the marriage, i.e., the longer the marriage, the longer the term of alimony.  Moreover, Massachusetts now recognizes several categories of alimony:  rehabilitative, reimbursement, transitional and general term alimony.  Because of the intricacies of this law, the interplay of alimony with other divorce-related issues, and the wide array of interpretations within the court system, it is wise to discuss your circumstances with an attorney to determine how the law applies to your particular circumstances.

Abuse Prevention Orders (aka restraining orders)

Massachusetts has a statute that authorizes the courts to protect someone who has been abused or threatened with abuse from a family member or household member. Abuse is defined as physical harm, being placed in fear of imminent serious physical harm, or being forced to engage involuntarily in sexual relations. The abused and abuser must be family or household members, the definition of which includes people who have been in a “substantive dating relationship,” people that “are or were related by blood or marriage,” and people who have a child in common regardless of whether they have ever been married to each other or lived together. A violation of an abuse prevention order is considered a crime. A 2012 amendment to the statute added protection for domestic animals; this change in the law made a lot of sense, because many abusers harm household pets, or threaten to abuse the pet, and use the presence of the animal to keep the abused person from seeking assistance. If the abuse occurs when the courts are closed, which often is the case, the local police can assist by obtaining an order from the emergency judge on call, which is always available. While rational people typically comply with court orders, an abuse prevention order will not stop someone who is irrational or truly intent on harming another person, so it is always wise to seek counsel and take all steps to protect both family and pets.

Would mediation work for me?

Divorce mediation can minimize both the cost and level of acrimony in a divorce or post-divorce case if used properly. Another benefit is the ability to creatively draft an agreement that fits your needs. Are you and your spouse (or ex-spouse) on a level playing field? If so, meaning that neither of you is likely to use mediation as a tool to dominate the process, mediation could be for you. Ideally, your mediator will be an experienced attorney with mediation training. Also, mediation does not negate the need for each of you to have independent representation, if only to review the agreement resulting from mediation to ensure that your best interests have been served.

Moving Children Out of Massachusetts After Divorce

Massachusetts has a statute that prohibits parents from permanently moving their children out of the Commonwealth after divorce except with permission of the other parent or the Court; this is called “removal” in the Court system. Often, the legal process includes the appointment of a Guardian ad Litem to evaluate and make recommendations to the judge about whether a child (or children) should be permitted to move. Factors considered include not only the child’s wellbeing and relationship with both parents but also whether, and how, moving would be advantageous to the moving parent.

Pre-Marital Agreements

For certain couples, a pre-marital agreement may be useful as a tool to prevent family disputes and/or divorce related issues in the future. For example, a person remarrying may wish to preserve his or her home for the children of a first marriage; a young person planning marriage may have no wealth of their own but may wish to protect family wealth in the event of a death or divorce. Massachusetts law does recognize and enforce pre-marital agreements; however, careful drafting is the key to ensuring that your goals are addressed and to satisfying the Court’s requirements.

Abuse prevention orders

Massachusetts has a statute that authorizes the courts to protect someone who has been abused or threatened with abuse from a family member or household member. Abuse is defined as physical harm, being placed in fear of imminent serious physical harm, or being forced to engage involuntarily in sexual relations. The abused and abuser must be family or household members, the definition of which includes people who have been in a “substantive dating relationship,” people that “are or were related by blood or marriage,” and people who have a child in common regardless of whether they have ever been married to each other or lived together. A violation of an abuse prevention order is considered a crime. A 2012 amendment to the statute added protection for domestic animals; this change in the law made a lot of sense, because many abusers harm household pets, or threaten to abuse the pet, and use the presence of the animal to keep the abused person from seeking assistance. If the abuse occurs when the courts are closed, which often is the case, the local police can assist by obtaining an order from the emergency judge on call, which is always available. While rational people typically comply with court orders, an abuse prevention order will not stop someone who is irrational or truly intent on harming another person, so it is always wise to seek counsel and take all steps to protect both family and pets.