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. 

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. 

    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!

Under Rosenberg v. Merida, if a payor parent receives SSDI and the children receive the derivative dependency benefits, the dependency benefit must be added to the payor parent’s income for child support worksheet purposes.  Then look at the figure the child support worksheet calculates.  If the dependency benefit is greater than the child support calculation, the payor parent does not need to pay any additional child support.

If the dependency benefit is less than the child support calculation, subtract the dependency benefit from the child support calculation.  The remainder is the amount the payor parent must pay for child support each week.   

1) Call the Department of Children and Families (DCF) and ask them to conduct an investigation.  They will conduct a SAIN interview, which is a 1-time interview with the child.  The purpose of a SAIN interview is to keep the child from being interviewed multiple times.

2) Immediately seek legal counsel to file an emergency motion and temporarily suspend visitation with the allegedly violent parent until the court is able to reach a judgment.

3) Take the minor child to the pediatrician, who will conduct an evaluation.  The pediatrician is a mandatory reporter who will call the Department of Children and Families (DCF) if DCF has not been already notified.  The pediatrician’s records might also come in handy at trial.

4) Find a therapist or psychologist who specializes in these issues and enroll your child in therapy.  Therapy is doubly beneficial; the child will be able to work out some of the terrible things that happened to him/her, and a professional will monitor his/her mental state.

5) Although I would not advise this for the vast majority of cases, on occasion with young children, it is appropriate to take photographs of the injury.  For example, I saw a case where a 3-year old was being violently hit on his groin and upper thighs.  In that case, the photograph of his legs (which were taken while he was sleeping) were sufficient to win an emergency motion barring the allegedly violent parent from seeing the child until the court reached a conclusion.

Almost all of the time, divorces occur in state court.  To determine if Massachusetts will hear your divorce case, consider the following:

1) If the grounds for divorce (i.e. irretrievable breakdown or desertion) occurred in Massachusetts and at least one of the parties currently resides in Massachusetts, the divorce can be filed in Massachusetts.

2) If the ground for divorce occurred outside Massachusetts, the divorce can be filed in Massachusetts if at least one party lived in the state for at least one year before filing.

If you don’t fit into either of these scenarios, consult with an attorney on where to file your divorce.  If you do fit one of these scenarios, you will next need to figure which county’s courthouse to use, since each county in Massachusetts has a Probate and Family Court.  To determine venue, consider the following:

1) If a party still resides in the county where the couple last resided as husband and wife, the divorce shall be filed in that county.

2) If neither party still resides in the county where they last resided as husband and wife, the divorce shall be filed in either county in which a party currently resides.  

2) Gather every piece of documentation you can.  Attorneys spend a lot of time and money fighting over unknowns.  If you can prove your salary, your spouse’s salary, the value of all assets, the value of all liabilities, and all expenses, you will cut down on the amount of fighting and time spent in your divorce.

3) Try to resolve some things directly with your spouse.  For example, if you know you and your spouse really only disagree about the disposition of the marital home, consider sitting down with your spouse to work out everything else.  Then your attorneys will only charge you for litigation over the marital home.

4) Find an attorney who will do Limited Assistance Representation.  This allows you to represent yourself for some of the easier motions and hearings, and only pull in your attorney for the more challenging issues. 

5) If you live in the state of Massachusetts, complete the Financial Statement on your own before you even hire an attorney.  This will save time, and your attorney can’t bill you as much for the completion of the financial statement when you give him or her a draft.

6) Finally, think before you call your attorney.  If you are fighting with your spouse about whether the custody exchange should occur at 5:00 pm or 6:30 pm this week, is it really worth calling your attorney who will charge you for that conversation? 

In Massachusetts, a third party can petition the probate courts for temporary and permanent guardianship.  Like traditional custody proceedings, the petitioner is required to give all parties notice of the proceeding.  Then all parties are called into court for a hearing.

So what makes the court grant guardianship to a third party?  The court will look at whether the parents are unfit and whether it is not in the best interests of the minor child to remain with the parents.  Parental unfitness is a high standard to meet.  Concern that a parent is sloppy, runs late, or is a poor communicator does not meet that heightened standard.  Evidence of a parent’s use of heroin or evidence of the parent’s exposure of the child to sexual assault is more likely to qualify.

If you are petitioning for guardianship, you should work with an attorney to compile your evidence and ensure that you can prove unfitness.  If your attorney advises you that you’re not in a position to meet your burden of proof, ask the parents if they would consent to your guardianship instead.  

Prenuptial agreements must be given sufficient time for thorough review.  The court wants to be sure you were not under timeline duress when you signed the agreement.  For example, if you signed it three days before the wedding, you were likely under the duress of potentially cancelling a fully planned wedding after guests had begun travel to your wedding.  You should execute the agreement months before the wedding, not days or weeks beforehand.  It is important that you had enough time to carefully scrutinize the language and content of the agreement.

The court will be unlikely to enforce an agreement where both parties failed to have independent legal counsel.  Each party must have his or her own attorney to draft or review the agreement and make sure it meets that party’s needs.  Each attorney can only counsel his or her client.  Counseling both parties is a conflict of interest and malpractice.

The court will probably not enforce a prenuptial agreement unless the parties fully disclosed their financial assets to one another during negotiations for the prenuptial agreement.  You should speak with your attorney to ensure that your disclosure constitutes a full disclosure.  If your assets are complicated, your counsel might advise you to have your financial planner prepare the financial statement on your behalf.

In conclusion, if you and your betrothed have decided to execute a prenuptial agreement, make sure you are creating one that is enforceable.  It should be executed in advance of the wedding with two independent attorneys and with the full disclosure of each party’s financial circumstances.  Discussing finances and marital goals in advance of the wedding has a dual purpose—it leads to a prenuptial agreement AND increases the likelihood that you and your spouse will be on the same page during your marriage. 

2) Talk to your spouse about the cost of divorce.  If you litigate, you might be looking at a $40,000.00 trial per person.  If you negotiate, the cost might be closer to $2,500.00 per person.  Choose negotiation, mediation, collaborative divorce or litigation jointly so you are on the same page about the expense of divorcing.

3) Set divorce priorities.  Is consistency for your children your top priority?  Is an equitable distribution of retirement assets your concern?  Or is affordable housing worrying you?  If you are open about your concerns and you jointly prioritize, you will eliminate some of the friction.

4) Be patient.  Your spouse might need a few weeks or months to process the news, and might be unwilling to negotiate immediately.  Generally, there is not a rush.  In fact, many courts have mandatory waiting periods before they will issue a divorce.

5) Work together to collect your financial documentation.  Compile your tax returns, bank statements, and all other financial data from your marriage.  Make copies so you each have a full set.  If you are in agreement about the identification of assets, you are one step toward the distribution of assets.