Mediation offers many advantages over litigation. Mediation is far less expensive, occurs at the pace you choose, allows you to reach creative solutions tailored to your own lives, and leads to outcomes that are generally more sustainable than court-ordered outcomes. However, if you choose mediation, you should do it right. The right way to pursue mediation is to consult counsel before or during the mediation process. As I’ve mentioned previously on this blog, the mediator is a third party neutral who cannot offer legal advice. So, in order for you to know your rights under the law and properly strategize arguments and approaches to obtain those rights, you need to meet with separate counsel. It’s important to talk to that counsel before or during the mediation, not after. If your attorney gives you advice pre-mediation, you will have an informed approach to mediation and effectively use the mediation time. If you attorney gives you advice post-mediation, you may realize that you want to back out of the agreement you just reached in mediation, which would be a waste of your time, your spouse’s time, and the expensive mediator’s time. Some clients believe that they can read the law themselves and do not need an attorney at all. Beware! At the uncontested hearing, when the court decides whether or not to approve your Separation Agreement, the court will ask if you had the opportunity to consult counsel. If you answer negatively, the court will examine your Separation Agreement with extra scrutiny because it will be less likely to be fair and reasonable. Again, everyone’s time will be wasted if the court refuses to approve the Separation Agreement.
College Contribution
If you and your spouse have minor children, you should consider their future college education costs. There are a number of creative ways to provide for the payment of those expenses. Here are a few: 1) The child shall make a good faith effort to apply to all potential grants and scholarships. The parties shall then pay the remainder of college education costs proportionate to their incomes. 2) The child shall make a good faith effort to apply to all potential grants and scholarships. The parties shall then pay the remainder in equal shares. 3) Wife shall be responsible for 1/3 of college education costs, Husband shall be responsible for 1/3 of college education costs, and Child shall be responsible for 1/3. 4) One party agrees to pay the entirety of college education costs. 5) Use a public school as a reference point. For example, one party agrees to pay the total amount of college education expenses not to exceed the cost of attending UMass-Amherst for four years. The child shall be responsible for all costs beyond that. Be careful. If your children are very little, you might be negotiating in the dark because you do not know the many things that may happen between now and the moment your child enters college. Be sure to consult with an attorney to draft an agreement that meets your financial best interests.
A Contract to Stay Married
Whenever a prospective client first enters my office, I tell the prospective client that s/he can spend money on a divorce and be sad and lonely once divorced. Or the prospective client can spend money on a marital counselor instead and have a shot at happiness. Many times, once people begin marital counseling, they realize they can be happy if they change the financial arrangement within their marriage. I often hear clients saying they want to start living with separate bank accounts, or they only want to continue the marriage if it’s determined now how property will be divided if they divorce in the future. Some people want to memorialize the new arrangements or negotiations in a contract called a postnuptial or marital agreement. Marital/postnuptial agreements, like prenuptial agreements, are tricky because they are not always enforceable. The Massachusetts Supreme Judicial Court discusses their enforceability in Ansin v. Craven-Ansin. In order to be enforced, the SJC requires that the marital agreement was “negotiated by independent counsel for each party, was not the product of fraud or duress, and was based on full financial disclosures by the husband, and that the terms of the agreement were fair and reasonable at the time of execution and at the time of divorce.” However, even if you meet those factors, the court may still choose to not enforce the marital agreement. It’s worth paying an attorney to work on your marital agreement in order to increase the likelihood that the court will enforce it.
Common Financial Statement Questions
The financial statement lists a number of sources of income and deductions that don’t apply to me. Should I leave those blank? How do I calculate my expenses? They vary monthly. Nothing has changed on my financial statement since the last hearing. Do I need to completely redo the financial statement for the upcoming hearing? I want to explain something on the financial statement that is not clear. Where do I do that? It’s easier for me to complete the financial statement by hand.
No, the court requires each field to be completed. If you do not have a particular source of income, deduction, or expense, enter “zero” instead of leaving the field blank.
You can approach the calculation a couple of ways. You can take the average based on expenses for the last three months. Or you can take the average over the last year. Just be sure to be consistent. If you take averages of the last three months for income, you should do the same for expenses. You may want to talk to an attorney because it might be helpful to calculate figures one way or another based on your request for alimony and child support.
No, most courts will accept the prior financial statement if you re-sign the final page on the date of the upcoming hearing. Be careful though—chances are a figure did change, such as your checking account balance or the balance of your 401k.
You can footnote a field, and then enter footnotes on the bottom of the page. Alternatively, you can include endnotes in an addendum. Be sure the footnotes/endnotes are on the copy submitted to the court.
The copy you submit to the court needs to be typed and on pink paper. It sounds silly, but providing a pink, typed copy will flag to the court that you are a serous litigant who knows what you are doing.
Why Can’t Your Mediator Be Your Lawyer?
In family law mediation, the mediator’s job is to facilitate resolution of the divorce. In other words, the mediator will manage and coax a conversation in which custody, child support, property disposition, alimony, health insurance, and taxes are settled. The mediator may reflect values, reframe issues, and ask pointed questions to reach settlement. However, there are several things a divorce mediator cannot do because it would be a conflict of interest. First, a mediator is not supposed to give either party legal counsel. For example, the mediator cannot tell Wife that she should file a Motion to Compel because Husband has been non-compliant with temporary child support, nor can the mediator advise Husband to not move in with his new girlfriend because it will impact his rights to receive alimony. It is a conflict of interest to give this type of guidance to one or both parties, while also mediating. Second, a mediator technically should not draft a Separation Agreement for the parties. Drafting a legal document, such as the Separation Agreement, is part of legal representation. If the mediator drafts it, who is she drafting it for? One party? The other? She can’t draft it for both of them because that would be a conflict of interest. You may find divorce mediators who are willing to smudge these lines, but be careful. The court might not accept a Separation Agreement “mediated” in that manner. To prevent trouble, hire an attorney in addition to your mediator. Your attorney can answer your legal questions and draft the Separation Agreement for you. That way, you don’t have to implicate your mediator in a conflict of interest. And, as a bonus, the court is more likely to accept a Separation Agreement where both parties had counsel. It might seem more expensive to hire a mediator and an attorney, but it saves you the cost of a Separation Agreement that breaks down before the court.
What Will the Court Ask You at an Uncontested Hearing?
The majority of the divorce process is negotiating with your spouse to reach a divorce settlement. By the time you’ve signed off on the Separation Agreement, you and your spouse may have been negotiating for months or years. Signing the Separation Agreement, however, is not the last step. You still need the court to approve your Separation Agreement at the uncontested hearing. What questions can you expect at your uncontested hearing? The judge will likely ask you the following: 1) What is your name and address? Are you married? What is the name of your spouse? When were you married? Did there come a time when your marriage suffered a breakdown? Were there any minor children born to this marriage? (The judge asks these questions to confirm the accuracy of the information on your complaint for divorce.) 2) Have you had an opportunity to read the Separation Agreement? Do you believe it is fair and reasonable? 3) Have you had an opportunity to consult counsel? If so, are you satisfied with your counsel’s ability to answer all of your questions? If not, do you understand that you may be waiving certain rights under the law, such as the right to alimony and property disposition? Do you understand that property disposition is final and cannot be modified? 4) Have you had the opportunity to review your spouse’s financial statement? Do you believe it is truthful and accurate? Did you have the opportunity to request and review supporting documentation? 5) Were you of sound mind when you signed this Separation Agreement? Were you under force or duress to sign this Separation Agreement? If the judge reviews your Separation Agreement and financial statements and believes that a provision is unfair or unreasonable, such as a waiver of child support or alimony, the judge may send you and your spouse out in the hallway to modify that provision of the Separation Agreement. To avoid this hassle, before you sign the Separation Agreement, ask your counsel if the judge is likely to find it fair and reasonable.
Is Divorce Worth It?
It might come as a surprise that I often try to talk prospective clients out of divorce. While divorce is sometime necessary, its disadvantages often outweigh its advantages. Divorce can be the most emotionally, socially, and financially devastating event of a lifetime.
Before a client divorces, the client must think through the financial reality of maintaining two separate households. In most cases, prior to divorce, the family income maintains one home. After divorce, the same amount of money must be stretched to meet the needs of two homes. What would it look like for the client to live on half the amount of money currently entering the home? Before pursuing divorce, the client should sit down and budget what life would be like. If the client will be receiving child support and/or alimony, how much child support and/or alimony will the client receive? Is it enough to cover rent, groceries, and other necessities? Will the client need to take on extra work to meet all his or her expenses? If the client will be paying child support and/or alimony, how will that impact the client’s ability to live on his or her own?
The client may want to keep the marital home, but will the client be able to maintain it? Can the client afford to pay the mortgage, utilities, insurance, and taxes? If not, will the client be able to find a sufficient rental option in the children’s school district? If the client is hopeful to purchase a new piece of property, will the client have enough money from the property disposition to make a down payment? After dividing the parties’ liabilities, will the client have the credit necessary to buy a house?
Similarly, the client should envision what life might look like with a time-sharing arrangement. How will client feel about only seeing the children on weekdays? Or on weekends? Or whatever time-sharing arrangement is likely? How will the client feel about not being able to move the children out of the area without the consent of the opposing party?
Sometimes divorce is worth it, but not always.
5 Easy Tips to Impress the Judge
Here are five easy ways to impress the judge, whether you appear pro se or with counsel. 1) All hearings are recorded so the court has a record. The recording technology only captures audible and clear voices. Speak with a strong and clear voice so the judge does not need to tell you to speak up. 2) At the start of a hearing, every person appearing before the court must introduce his or her name to the record. Be prepared to state your name, once again audibly and clearly. For example, “Good morning, your honor, Joe Smith.” 3) Address the judge as “Your honor.” For example, “Your honor, we’re here before you on a Complaint for Contempt filed September 1, 2013.” 4) Know your facts, and practice presenting them in a clear way. If you are worried you will freeze during the hearing, bring a legal pad with a cheat sheet of names and dates of birth for children, addresses for property, and other pertinent data. 5) Keep calm, and never interrupt the opposing party, opposing counsel, or the judge!
Immigration and Family Law
Attorney Silber co-authored an article, Custody of Children in Mixed-Status Families: Preventing the Misunderstanding and Misuse of Immigration Status in State-Court Custody Proceedings, which appeared in the Summer 2013 issue of Family Law Quarterly. Here is an excerpt from the introduction:
“The immigration debate is at the forefront of discourse in American society. Since 2005, there has been a growing consensus about the need for comprehensive immigration reform. In his January speech on comprehensive immigration reform, President Barack Obama urged us to remember that ‘this is not just a debate about policy. It’s about people,’ and that ‘the overwhelming majority of these individuals aren’t looking for any trouble. They’re contributing members of the community. They’re looking out for their families. They’re looking out for their neighbors. They’re woven into the fabric of our lives.’
While immigration reform continues to be debated at the federal level, the immigration debate has also been underway at the local level. Some state and local jurisdictions have passed their own anti-immigrant laws in the course of this debate. The United States Supreme Court has overruled many, but not all, of these state law provisions and bias against immigrants has begun to manifest itself in a variety of ways in communities across the country.”
The article goes on to provide guidance for litigants in mixed-status family cases.
What is QDRO?
In order to divide a retirement asset, specifically a defined benefit plan or a defined contribution plan, the court must sign off on a qualified domestic relations order, also known as a QDRO or QUADRO. The QDRO is a court order that authorizes the plan administrator to assign an employee spouse’s benefits to a non-employee spouse. Generally the process goes as follows: the parties agree to division of a retirement asset, the parties jointly select a third party attorney to draft the QDRO for that asset, both parties sign the QDRO and send it to the judge, the judge signs off on the QDRO, and the finally the parties submit the executed QDRO to the plan administrator. It’s important to consult an attorney when dealing with division of retirement assets, because QDROs are very technical. Furthermore, an attorney can work with you to determine the tax ramifications of dividing retirement assets.