Mediation Q&A

Is it common to have second thoughts about signing our settlement agreement?

Additional Info: My spouse and I are going to be signing our settlement agreement this week. But I am having second thoughts about parts of the agreement. I am not so sure I want to sign because of that. As I read over the agreement days prior to signing, I am not so sure now. I know once it is signed by the parties, it is very difficult to change, if at all. I am really thinking about holding off on signing it until I figure these things out. Is it fairly common to have second thoughts at the end? Should I proceed with signing it anyway or hold off until I get things figured out?

You should absolutely wait to sign until you are sure of all the parts of your agreement. If you have an attorney, discuss these issues again with your attorney. Perhaps you need a financial advisor or Certified Divorce Financial Analyst to review it with you and to make sure that your financial needs have been given proper consideration. Your agreement is not final until it is signed and approved by the Judge, but it is more difficult to change once it is signed. You may always have some unease with different parts of the agreement. Looking at the whole agreement you need to decide if the complete agreement is fair and equitable. Do certain parts that may be more favorable to you make up for any concessions or areas where you are more concerned? You can be upfront and explain to your spouse that you have some concerns and need time to make sure that the decisions you are making are right for you. It is far better for everyone to do this now, rather than later when it would be more difficult and maybe not possible to change. It is common to have second thoughts as with any major and difficult life decisions, but your second thoughts are telling you something and you should listen to them.

How is income divided at divorce?

Additional info: For MA, I’ve heard 30% of the difference in income is typically paid from the higher income spouse to other spouse as alimony until retirement. Does this include only primary job, or also occasional consulting, book royalties, etc? What if income spikes or falls in some years? What if someone quits or gets fired or gets sick? Do we have to exchange tax forms forever to do this? And how is “retirement” defined?

The questions you ask really get to the fine details of how alimony works. Remember, the alimony law is a standard to follow, however Judges have broad discretion in many areas of it. Because of this discretion spouses are able to negotiate and come up with alimony plans that will work for them. Alimony is modifiable based on income, therefor the issue of income increasing or decreasing in various years does need to be taken into consideration when clarifying this in the divorce agreement. Often divorced spouses do exchange their tax returns each year while alimony or child support is being paid if they want to take into account income variations. Retirement for purposes of the alimony law is not actual retirement. The law states that alimony will terminate when the payor reached their full social security retirement age; they can continue working and have alimony end. However, again in this area Judge’s have broad discretion. A judges decision will depend on the financial circumstances of the parties and how close to this age the parties are when the divorce is taking place.
You may want to consider divorce mediation as a way to amicable and fairly come to these agreements with the help of a neutral trained professional mediator. Mediators are skilled in conflict resolution and the legal, financial and family issues inherent in divorce. Go to mcfm.org for a list of certified mediators.

With the new Massachusetts Divorce laws on alimony, can my alimony be ceased due to new circumstances?

Additional Info: I have been divorced for over 27 yrs. and am still paying alimony. I am now 72 yrs. of age and live solely on social security.

 

Answer: With the new changes in the law it is possible that your alimony obligation would be modified however, what your divorce agreement or judgment says is very relevant. You may want to consider mediation as a way for you and your ex-spouse to come to a fair resolution of this issue. In mediation, you both would meet together with a neutral, objective mediator who would help the two of you disclose your financial circumstance to each other and then review your financial circumstances so that each of you understands the position of the other. Then the mediator would help the two of you discuss the changes that may be fair, help you to understand the legal information that has changed since the time of your divorce and finally to craft an agreement that meets with both of your approval. Mediation is often less expensive and less time consuming than the traditional adversarial process of a court modification. I hope this information will be of help to you.

Can I petition to change our visitation schedule?

Additional Info: My ex and I are in the process of divorce and have a custody agreement, and temporary orders set in place. He has our 1 year old son every Monday over night into Tuesday. However, he works Mondays and Tuesday, and pawns my son off on his family. He also has our son every other weekend. I am perfectly able to care for my son during those days that he is not available. I am looking to petition for visitation on alternating weekends only for him. Is that acceptable?

Answer: Certainly talk to your attorney. For a 1 year old particularly- not seeing a parent for almost 2 weeks is a very long time. It is really important for a young child to see the parent he is not living with as frequently as possible. That is why a weeknight is often included in a parenting plan- so that the child can spend time with the parent on the week that they would not be seeing them and for a shorter period of time. Perhaps an adjustment to this schedule may have a better result for both of you? A night that “dad” is not working- and more towards the middle of the week. or the evening and overnight with dad and the daytime with you if you are not working. Perhaps there is one weekday that dad can leave work early and stay late on another day to make up for it when the child is not with him. This overnight can also allow you to use the time for something that you need to do. It is so important to encourage the relationship that each parent has with their child. Your child will have immense benefits over his entite life by being able to build a solid relationship now with his father. These adjustments to the schedule will happen over many years of your son’s life. When your din enters school schedules may change. It is so helpful to look at them as opportunities to increase the bonds that your son has with both his mother and his father.

I want a divorce but my husband refuses to leave.

Additional Info: I don’t have any family or friends that can let me and my 2 small children stay with them and not enough money to move out right away. Is there anything legally I can do to make him leave while we start the divorce process?

Answer: I would suggest that you consider divorce mediation as a way to not only resolve the issues surrounding divorce but to figure out logistically how to live physically in separate places. In mediation you can discuss what are the concerns that your husband has relative to moving out. Does he realize the divorce is inevitable? If so, he may be refusing to leave because of issues you may not even be aware of. He may think that if he leaves he can be accused of abandonment. Many many people are worried about this and afraid to leave the marital home. With legal information from a mediator he can learn that this would not be an issue, judges realize that someone does have to leave. He may not want to leave until a parenting plan is in place, assuring him of ample time with the children. He may also feel that if he leaves he gives up his right to the home if you own it. These concerns can be addressed in mediation and a preliminary agreement can be reached just to enable a separation to occur. You certainly should speak to a divorce and family law attorney in your area to go over what your rights may be in this situation.

Will using a mediator put me at a financial disadvantage?

Additional information:  My husband and I separated last fall. I have always homeschooled my children (something we both agreed upon). I have a M.S. in Nutrition and up until this past January, I have put my career on hold to homeschool the kids. I think that I have a right to get 50% of our combined earned income as support. I have been home for 14 years nurturing, raising and educating our children. Before doing this, I was earning a good living in my mid-twenties ($55,000/yr). He wants to use a mediator. I am worried that these things won’t be considered and I will be at a financial disadvantage.

Answer: In divorce mediation the issues of one spouse putting their career on hold for the benefit of the children and family is certainly addressed and considered in perspective with all the other issues that need to be addressed. The capabilities of each spouse to earn through employment in the future would also be addressed. Using a lawyer and/or financial advisor during the mediation may be a very helpful approach for you. You would certainly not be in any way disadvantaged financially or otherwise in mediation especially because you seem to have an understanding of what you would like to see happen. [Read more…]

How can I use QDRO money without penalty?

Additional information: I’m 40, getting divorced & expect $50K from QDRO. I’m so in debt. How can I use QDRO money without penalty?

Answer: There is a little known exception to the requirement that an early distribution from a retirement plan causes one to pay a 10% penalty on the money withdrawn.  If this QDR is on a 401K Plan. 403B or KEOGH profit sharing or money purchase pension plan the IRS offers an exception to the early distribution 10% penalty. There is an option for the alternate payee (you) to withdraw the funds and only pay the tax and the penalty would be waived. When the QDRO is implemented, the 1099-R from the financial institution must be coded with a “2” – early distribution, exception applies. If it is not coded properly this incorrect election can be corrected after the fact. Please consult with a financial advisor or accountant before making this very important decision as the income received from this withdrawal may put you into a higher tax bracket and cause you to pay additional taxes. A financial professional will be able to advise your properly based on your entire financial situation and may have other more appropriate suggestions than early withdrawal from a retirement plan.

Will the courts grant my ex-wife alimony?

Additional information: My ex wife wants alimony but refuses to pay me child support. She is currently living with her new boyfriend and to date has refused to support her daughter but is insisting on me giving her alimony. Will the courts grant her alimony even when she is working full-time but refusing to work OT that she used to work when we had been together? She makes 35,000 and I make 83,000.

Answer: As you mention in your question that your wife is living with her new boyfriend – the alimony statute actually provides that if a spouse is maintaining a “common household” with another for a period of 3 months, alimony would be suspended, terminated or modified.  It would seem that requesting alimony while one is “living” with a significant other would be difficult under the law, however her situation may change.  You may want to consider mediation as a way to explore and discuss the very difficult issues you are clearly encountering.  How your family can address the financial issues in a way that will be fair and equitable for all and provide for your daughter is the basis of divorce mediation.  A neutral professional will assist you in making decisions on all the issues involved in a comprehensive divorce agreement.

Is mediation the right course for my divorce?

Additional information: My Husband and I lived together for 8 years before marrying in Aug 2010. We have no children and the majority of our assets (including our condo) are in his name only due to my poor credit. Now that he has asked for a divorce I have found reason to believe he is having an affair. He said he wants to bring this to a mediator, but am not sure that is the right choice for me. I want to make sure I am protected and walk away with what is fair. I have immediate questions about living arrangements, if I leave the condo does that jeopardize anything later? Can I ask him to leave? Are we both still responsible for household bills if one of us leaves? Can he take my car or report it stolen if it is in his name, but I pay for it? Should I consider hiring a Private Investigator to prove the affair?

Answer:

These are very specific questions that should be handled one to one with an experienced family law attorney in your area. You can make sure that your rights are protected and still consider the process of mediation. Mediation would allow you to address your concerns for financial stability and security. Please note that nothing is final in mediation until the final agreement is signed so there is ample time to consult with and get advice and review from an attorney acting on your behalf. Generally, all assets of a marriage are considered marital regardless of whose name they are actually in. The issue of an affair is often more an emotional issue rather than a factor that would make a financial difference in the outcome of a divorce. To get into a fault based divorce process is often highly contentious and financially costly. Although it seems very raw right now, eventually communication about these issues may very likely bring out the truth about why your marriage is ending.

My husband controls all the money. How can I afford a divorce lawyer?

Additional Information: We have been married for 32 years. I stayed home to raise our two children. When they were older I starting working until I got laid off fairly recently. Last year I developed many health issues that caused me to not be able to work. I work part time now despite health issues. My husband controls all the money and gives me less and less to pay the bills. I do not make a lot of money. Who moves out since I can’t afford a hotel or apartment? Do I have to work full time despite health concerns or would I be entitled to alimony? [Read more…]