DIVORCE & PATERNITY MEDIATION

COLLABORATIVE LAW

ATTORNEY REPRESENTATION

Divorce Mediation - Massachusetts

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If you're reading this you are likely considering or are already involved in a divorce. Either way, it is important that you understand your rights in a divorce case in Massachusetts, and how a Mediator can help you and your spouse settle your divorce in the most efficient and fair way possible. Below we have provided answers to many of the common questions that we are asked regarding mediation of divorces in Massachusetts. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

What is a No Fault Divorce?

Massachusetts General Laws Chapter 208 Section 1A and 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.

How do I file for a No Fault Divorce?

Joint Petition for Divorce under Section 1A:

If both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. A Divorce Mediator, so long as they are also a lawyer, can draft the Separation Agreement for you, once you and your spouse reach a full agreement on all issues.

The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a full and complete Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. A Mediator will not attend the court hearing with you, but you can have your own separate attorney attend the hearing with you. After the hearing, the Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

What is Discovery?

In a Divorce Case, after the service of the Complaint for Divorce and filing of the Answer, you are required to exchange certain information with your spouse in order to allow you both the ability to make informed decisions regarding the settlement of your case. In addition, if you are unable to reach a settlement of your case, the documents and information produced during discovery will make up the evidence that you will present to the Judge at a trial. This process of exchanging information is called Discovery.

In a Divorce Mediation, you will still need to produce these documents to each other, but the production is a voluntary and cooperative process. In most cases, the same information, such as financial documentation will need to be disclosed to each other. Your Mediator can assist you by providing a list of the types of documents that spouses typically need to exchange to settle their divorce case.

This process is very important because if you do not obtain enough information about the facts of your case, you will be unable to evaluate intelligently settlement proposals made by your spouse. For example, if you do not have information about the value and extent of your spouse's assets, you will not know whether or not you are receiving an equitable share of those assets.

The goal of discovery is full disclosure of all assets, liabilities, income and expenses.

Do I have to fill out a Financial Statement (Supplemental Probate Court Rule 401)?

Supplemental Probate Court Rule 401 provides that, within 45 days after the date of service of the Summons in a Divorce case, each party must serve on the other party a complete and accurate financial statement showing, insofar as possible, the assets, liabilities and current income and expenses of both parties and children involved in the case. In a Divorce Mediation, the same form should be completed and exchanged by the Parties to assist in preparing an informed settlement of the case. In addition, the Financial Statement of each party must be filed with the Court upon the completion of a settlement, in order for the Court to consider approving the settlement upon a Joint Petition for Divorce.

The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equal or exceeds $75,000.00 must complete the long form financial statement. A party whose income is less than $75,000.00 must complete the short form financial statement.

You should immediately begin working on your Financial Statement and provide a draft copy to your spouse. It is very important that you complete this document accurately, and completely. The Financial Statements are signed under the pains and penalties of perjury. The consequences to lying or filing an incomplete Financial Statement are significant, and could include a Judge finding you to be an unreliable witness in any future hearings (i.e. take all relevant testimony from your spouse only). In addition, if a settlement is reached in your case and it is later discovered that a particular asset was left off your Financial Statement, the settlement could be voided for fraud.

You should take particular care in completing your Financial Statement and err on the side of including everything. If you are not sure if something belongs on a Financial Statement you should consult with an attorney.

Are there Temporary Orders in Mediation?

Once a Complaint for Divorce has been served, either party has the right to file a Motion with the Court, which is a written request that the Court Order that something happen in your case. These can include requests that the Court order a party to comply with discovery or requests that are specific to your unique situation. The Court's rulings on these requests are called Temporary Orders.

In a Divorce Mediation you will not be attending court to seek Temporary Orders but you may still need to make certain temporary agreements that will allow you and your spouse to find a suitable temporary living situation while the divorce mediation is pending, including providing for how you will pay the bills, who will pay which bills, who the children will live with, etc. These are some of the types of issues you may need to resolve early in the mediation for it to be successful.

How much Child Support will I get?
How much Child Support will I pay?

Child Support is paid by the non-custodial parent to the custodial parent for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. If you and your spouse decide in Mediation to vary from the guidelines you will need to explain to the Judge your reasons for varying.

To view the formula and calculate your Child Support view ou Massachusetts Child Support Guidelines Worksheets click here.

How much Alimony will I get?
How much Alimony will I pay?

Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so.

Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which becomes effective on March 1, 2012. Once effective, the act provides for multiple types of alimony, and for maximum amounts and duration of alimony.

The new law defines the maximum amount of Alimony:

Except for Reimbursement Alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30% to 35% of the difference between the parties gross incomes.

The new law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:

• Remarriage of the recipient;
• Death of the recipient;
• Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
• Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated above;
• Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination;
• Upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416.

The deviation factors which could result in a different amount or duration are:

• Advanced age; chronic illness; or unusual health circumstances of either party;
• Tax considerations applicable to the parties;
• Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
• Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
• Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
• Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
• A party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;
• A party's inability to provide for his or her own support by reason of a party's deficiency's of property, maintenance or employment opportunity; and
• Upon written findings, any other factor that the court deems relevant and material.

What is the required Parenting Course?

Under Standing Order 99-1 of the Probate & Family Court, if you have any minor children together then you are required to attend the Court-sponsored Parents Apart education program before you can present a settlement of your case for hearing. A brochure which lists the names, addresses and telephone numbers of the various organizations that provide this program, in alphabetical order by town, is available by clicking here.

You should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a golden Certificate of Completion, which you must provide to the Court along with the Joint Petition for Divorce.

What is a Divorce Agreement (also called a Separation Agreement)?

If you and your spouse are able to reach a complete settlement, it will be reduced to a written Separation Agreement by you or your mediator. A Separation Agreement is lengthy and very specific as to the details of settlement in all aspects of your case. The Agreement is submitted to the Court for review by a Judge and must be approved by a Judge at a Court hearing. You and your Spouse will be required to attend that hearing in person.

The Judge will review the Financial Statements of the parties and the Separation Agreement and if the Court determines that the written Separation Agreement is fair and reasonable, especially to any minor children, the Court will incorporate the terms and conditions of the written Separation Agreement into its Judgment of Divorce Nisi.

When incorporated the terms and conditions of the Separation Agreement, the terms can either merge with or survive the Judgment. If the terms merge then they can be changed in the future upon a showing of a material change in circumstances (which would require the filing of a Complaint for Modification). Although the Court is very unlikely to change property division in the future, the Court upon a showing of a material change in circumstances could change orders relating to alimony (even if waived), health insurance, life insurance, retirement accounts, etc. Child related issues always merge, until the minor children become emancipated.

If the terms survive then they cannot be changed in the future except upon a showing of "countervailing equities." This is a very slim chance that the Court will overturn a survived term, upon a showing that it is so egregious and unfair that the Court cannot uphold it, which was done in one particular case when alimony was waived permanently and survived, but the former spouse needed alimony or she would become a ward of the state because of a severe disability and the marriage had been a long-term marriage. It is important to note that it may not be appropriate in some circumstances to survive alimony in a long-term marriage, even if there is not to be a current alimony order.

What is the difference between Merger and Survival?

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the Agreement.

If a portion of the Separation Agreement survives then this means that said portion does not combine with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is NOT open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances.

Are there any provisions of a Separation Agreement that must Merge?

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

Will I be able to keep my health insurance after the divorce?

Whether or not you can keep your health insurance after the divorce will depend on two factors, one of which is in your control and one of which is not. If you are currently on your spouse's health insurance, then they are required by the Rule 411 Automatic Restraining Order to maintain you on your health insurance during the pendency of the Divorce case. However, at the end of the case when you are divorced your status as an eligible dependent on their plan may change.

If your spouse's employer participates in a self-insured plan (usually only the case with very large employers), then the plan is covered by Federal law and not State law, in which case the employer can ignore the Massachusetts' law requiring eligibility of ex-spouses. This means that if your spouse's employer has a self-insured plan then no matter what the Court order states you will likely be terminated from your spouse's health insurance upon the divorce. At that time you will be eligible for COBRA, which is a program that allows for continuation of health insurance coverage for a set period of time so long as you pay 102% of the full premium.

If, however, your spouse's plan is not a self-insured plan then you will be eligible to continue coverage so long as you pay attention to the second factor, which is whether or not your Judgment of Divorce includes language requiring coverage. It is very important to consult with an attorney regarding the proper language to include in a Divorce Agreement to ensure that you will be eligible to continue to health insurance, if your spouse's employer allows for that option.

For more information on how to maintain or find health insurance after a divorce, check out this brochure prepared and distributed by the Massachusetts Attorney General's Office and Health Law Advocates entitled Staying Healthy: A Guide to Keeping Health Insurance After Divorce.



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