Mediation Traps

In general, I am a big proponent of mediation.  Mediation saves money, is efficient, and allows parties to reach a resolution that is individually tailored to their family.  However, there are a few shortcomings of mediation:

1) Often, people who choose mediation wait to file their divorce complaint until after the mediation is over and they’ve reached a Separation Agreement.  Since mediation can take months or years, they sometimes end up filing their divorce complaint nearly a year after they intended to be divorced.  This is problematic for alimony.  In Massachusetts, the duration of alimony payments is determined by the length of marriage, as defined by the date of marriage until the date of filing/service of the divorce complaint.  In other words, a manipulative party can deliberately delay mediation in order to obtain alimony for a longer term…  Solution: Hire an attorney to file for divorce before you begin mediation. 

2) Some mediators do not require the parties to complete financial statements prior to mediation.  This means that parties can negotiate a Separation Agreement blindly.  If you never see your spouse’s financial statement listing his/her hidden retirement investments, how can you negotiate for your marital share of that retirement investment during mediation?  Solution: Demand that both you and your spouse exchange completed financial statements (and supporting documentation) before mediation. 

3) The brilliance of mediation can also be its greatest weakness.  In mediation, the parties are not limited to the solutions available to them by law.  They can brainstorm solutions that the courts would never have conceived.  At the same time, without counsel during mediation, the parties might never realize the solutions available to them under the law, such as the Child Support Guidelines or the new alimony law.  It would be a shame to settle for less than you’re due, simply because you did not know what you could have gotten through the court!  Solution: Bring an attorney with you to mediation. In many cases, the attorney will save you considerably more money than you pay the attorney. 

It’s Never Too Late to Reconcile

I was trying to reach a client for a few weeks to prepare for his motion hearing on temporary child support.  I sent him postal mail, email, and numerous voice mails yet he was non-responsive.  Finally, the afternoon before the hearing, he called me.  “The divorce is off!  My wife is moving back in!” he excitedly said.

To be honest, my very first thought was that he must by lying.  Reconciliations occur infrequently in my line of work.  However, the next day, his wife appeared at court to sign a Joint Motion to Dismiss the Divorce Complaint.  She was in good spirits.

We had a very brief hearing and the judge—a generally stoic one—smiled and congratulated the couple.  Their reconciliation meant one less case on his crowded docket, one less child support case through the Department of Revenue, one less couple for the probation department to meet, and thousands of dollars saved in attorney’s fees.  When you think you might be able to reconcile, try it!  It’s good for your bank account, the state’s budget, and it’s likely to benefit you too. 

File Your Summons!

Often, when I’m waiting in line to check in at the courthouse, I’ll overhear a conversation in front of me that goes like this:

    Clerk: Where is your summons?
    Litigant: What summons?
    Clerk: The summons we gave you when you filed your complaint.
    Litigant:  I’m not sure what you’re talking about.
    Clerk: Well, we can’t have your hearing until you file the summons.  Come back another day.

Oy!  The summons is procedurally crucial.  The court needs to know that the Plaintiff (the initiating party) gave the Defendant proper notice of the court proceeding.  There are three ways the Plaintiff can provide proper service:
    1) The Plaintiff can serve the summons and complaint on the Defendant by constable.  In this scenario, the constable signs the summons and indicates when and where the constable served it on the Defendant.  The Plaintiff then brings the signed summons back to court.  
    2) The Defendant can accept service by signing the summons with notarization.  Here, the Defendant is essentially waiving his or her right to be served by constable and instead the Defendant voluntarily submits to the court proceeding.  The Plaintiff then brings the signed summons back to court.  
    3) If the Defendant is parts unknown, the Plaintiff can ask the court for permission to serve the Defendant by publishing the contents of the summons in a newspaper.  If the court allows it, the Plaintiff must file the newspaper tear sheet with the court, along with a returned, certified-mail envelope containing the summons, which was mailed to the Defendant’s last known address.

If you show up to court without one of the three above, the court will be concerned you failed to give the Defendant proper notice of the case and the court will most likely refuse to hear your case!