New Massachusetts Alimony Law

By Tracy Fischer

October 2011 – read the entire Alimony Reform Act (PDF)

The Massachusetts Alimony Reform Act of 2011 was just passed into law amending Massachusetts  General Law chapter 208 section 34, adding section 48, clarifying the nature and duration of alimony.  The law will become effective in March of 2012

First, four different categories of alimony are identified and defined: General term alimony is simply a periodic payment of support to one spouse to another.  Rehabilitative, Reimbursement and Transitional alimony are all defined as periodic or one time payments, considered after a marriage of five years or less.  They are all seen as a means to an end and for the particular purpose of enabling a spouse a short period of time to become independent.

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How long does divorce mediation take and what do we do regarding parenting schedule in the meantime?

Additional Information:

My husband and I are getting divorced and have both agreed to go through divorce mediation.  It seems that’s the only thing we can agree on.  He already has his own apartment in Peabody, but we can’t agree on how many nights our children can stay over with him.  I think they should be in their own familiar home until everything is sorted out.  I understand mediation can take longer than divorce litigation, how long will it take and what do we do in the meantime while we’re going through the process?

ANSWER:

First, it is generally accepted that the time involved in mediation of a divorce is substantially less than time required to litigate a divorce. In mediation the timeframe and frequency of meetings is determined by the couple.  If there is a mutual desire to resolve the divorce it can generally happen quickly.  Divorce litigation is dependent on the schedules of two attorneys and the court system which is often delayed.   Once you start mediation, one of the first things you will discuss will be a parenting plan, both dealing with the immediate situation and how things might look in the future.  The mediator will help the two of you to communicate and figure out collaboratively what is in the best interest of your children.  The mediation process is absolutely the time to come to agreements about how parenting issues will be resolved in real time.

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My husband cannot agree to a mediator.

Additional Information:

The Dedham court has required that we go to mediation to agree upon a parenting plan and division of assets. My husband refuses to agree to a mediator. Its been four months now! What can I do?

ANSWER:

Assuming the mediation requirement was an order in an ongoing court action, your husband’s delay in choosing a mediator will be seen negatively by the Judge once there is another hearing. If you are represented by an attorney, the attorney may choose to have a hearing to deal with this issue. The order for mediation is really to benefit both of you, in the sense that there will likely be  a savings in both time and costs in resolving the issue.

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Is long distance divorce mediation possible?

Additional Information:

Is mediation possible when one of the parties resides outside of the Boston area, or even outside of Massachusetts?

ANSWER:

It is possible though more difficult. If one party is out of Massachusetts it would be preferable that at least some of the meetings take place in person and some meetings could be by conference call. In order for the neutrality of the mediator to remain unquestioned, both spouses would be on the telephone during those conference calls.

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In divorce mediation, do we always meet together or can we meet separately with the mediator?

ANSWER:

Most often, couples meet together with the mediator. A technique called “caucusing” may be used by a mediator in order to have private conversations with each spouse – in conjunction with meeting together. It would be used for a limited duration- with the main portion of the mediation involving the couple meeting together.

This technique is used with different frequency depending on the particular mediator and the particular circumstances of the couple. For instance, it may be used when emotions are very difficult.  These conversations between the mediator and one spouse are not to be seen as necessarily confidential and can be used to further the mediation process.

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Can a lawyer hired by one spouse then become the mediator?

Additional Information:

Is it possible for the lawyer I hired in Marblehead to handle our divorce, to then become the lawyer to handle our mediated divorce?

ANSWER:

A mediator is bound by ethical considerations to have not had a prior relationship with one party to the mediation. Any mediator who is a member of the Massachusetts Council of Family Mediation would have had to sign Standards which specifically prohibit a mediator from mediating when there has been previous professional relationship with one party as this would create an “actual or potential conflict of interest”.  A prior relationship might mean that the mediator would have difficulty maintaining neutrality and impartiality towards both parties. So clearly a lawyer that had originally represented one spouse would not meet this standard of no prior relationship. There are some cases where there had been a prior relationship, but it had been so long ago or of a very cursory nature, that the other party could release the mediator to mediate in that situation.

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Can one party make legal changes to the signed mediation agreement?

Additional Information:

Can he legally make changes to the signed mediation agreement? We settled all the issues, we both signed the papers, along with our attorneys in Gloucester.  Now he said he has contacted his lawyer to make changes to the agreement. Can he do that?

ANSWER:

Once a mediated or negotiated Separation or Divorce Agreement is signed and notarized, one party does not have the option to change it.  If it has not been allowed by a Judge at a Divorce Hearing, the party who no longer agrees with it may refuse to sign the court paperwork to file or may attend the hearing and express to the Judge that the party no longer feels the agreement is “fair and reasonable”. A judge may enforce that agreement depending on the rest of the circumstances.  If both parties agree, the agreement may be modified.

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Are children or supportive friends permitted to attend mediation sessions?

Additional Information:

May a child who is the subject of mediation attend the mediation session?  Furthermore, are other supportive friends or family members permitted to attend?

ANSWER:

Depending of the circumstances, if both parents and the mediator agree, a child may attend and be a part of a mediation session.  It is crucial for the parents and mediator to determine whether being a part of the mediation process would be beneficial or detrimental to the child.  Perhaps the child’s therapist may be called upon to make a recommendation.  It is rather uncommon for a child to attend a mediation session and the older the child the more likely that it would make sense. Since the mediation process is between the two spouses, it is not recommended that supportive friends or family members attend the mediation sessions.

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Can mediation assist divorced parents address changing circumstances?

ANSWER:

As quickly as one to two years after a divorce, often issues related to the children may arise.  As children get older, parenting plans may need to be revised, schools may need to be changed or college decisions need to be made.  Mediation can provide a safe, secure and comfortable forum for parents to discuss the changes that have occurred in the lives of their children and changes in the financial arrangements that may have been made at the time of divorce.  Ultimately, if changes are agreed upon, a written modification agreement can be prepared.  By addressing the issues as they come up, before they turn into a conflict, parents can short circuit the types of difficulties that may occur when parents do not have opportunities for good communication.

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In Massachusetts, are our mediation conversations protected?

Additional Information:

May parties involved in the mediation process in Massachusetts be required to sign a confidentiality pledge or agreement prior to the commencement of the process?

ANSWER:

Often a Mediation and Fee agreement is signed by both spouses and the mediator at the outset of the mediation process.  The agreement outlines the role of the mediator as a neutral but more importantly, protects the confidentiality of the mediation process.  By having a written agreement, neither party may subpoena the other to testify in a related divorce hearing.  This allows the husband and wife to communicate without the fear that their conversations and negotiations may be used against them in the future.

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How do I prepare for a custody mediation session?

ANSWER:

The first thing to think about and remember is “what is in the best interest of the children?”, not necessarily what may be in the best interest of either parent.  The negative effect of divorce on children is directly related to the level of conflict among their parents, so a parenting plan that both parents feel good about will significantly reduce conflict.

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How do I know if divorce mediation is right for me?

ANSWER:

Divorce mediation can be helpful to most couples who want to preserve their relationship as parents even though they may no longer have a relationship as husband and wife.  As long as both spouses feel confident that all income,  assets and debts will be fully disclosed to one another, mediation can be a viable and economic option.

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Can the provisions of a divorce be changed after finalization?

Additional Information: I had a divorce attorney in Wellesley represent me three years ago in my divorce. Many things have changed since then and I’m thinking instead of going back to the divorce lawyer in Wellesley, it may be best for me to use a divorce mediator.

ANSWER:

Once a judgment of divorce has become final, either through a Judge’s decision after a trial or a judgement after an agreement has been approved, the provisions can be modified.  If there has been a change in circumstance since the judgement, one party can file a complaint for modification.  If both parties can come to an agreement through mediation, they can potentially avoid costly legal fees of a contested modification, and file an Agreement for Modification.

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We are getting divorced and I want to keep the house in Wellesley.

Additional information: When I got married, I moved into my wife’s house. We are now getting divorced and I want to keep the house in Wellesley. Do I have any rights to it?

ANSWER:

The answer to your question depends on various factors. How long have you been married? Have you contributed to the costs of the home or taken care of the home in some way? How long have you lived there? Does your wife want to retain the home? Are there other marital assets? Was a premarital agreement entered into prior to your marriage? Do you want to actually own the home or do you want to live there for a period of time? What was the home worth when you moved in and what is it worth now? Is there equity in the home? Can you afford the mortgage on your own? Are there children involved and where would they live? Depending on the answers to these questions it is possible that you and your wife can work out an agreement for you to remain in the home.

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How do I know if a mediator will be fair to me?

ANSWER:

Mediator neutrality is one of the most crucial qualities of a good mediator.  Mediators are trained to understand and deal with any biases they may have without letting it interfere with the process of the mediation.  Couples should select a mediator based on clear criteria: education, training, years of practice, professional background, membership in family mediation organizations and certification in family mediation. If a mediator is selected in this way it is more likely that they will have had extensive training and experience in dealing with issues of neutrality.  If a husband or wife feels that the mediator is biased or is “acting” in a biased way, it is most useful if that person can verbalize their concerns and have a discussion with the mediator about it. It may be a miscommunication or misunderstanding that can be addressed.

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Is mediation legally binding? What can I do if I don’t like the way the mediation is going?

ANSWER:

The agreement that is produced as a result of mediation is only legally binding after it has been signed.  The discussions and conversations that couples have during mediation are actually confidential and cannot be disclosed by the mediator.  The purpose of the confidential nature of mediation is for couples to feel free to communicate and negotiate without fear that what they say may be used against them in the future.  Many tentative agreements are reached during the mediation process on the way to coming to a final agreement of all of the issues.  It is important that both the husband and wife realize that as they go through the process they are making agreements in “good faith”, and to know that they have the right, up until they sign the final agreement, to reconsider or change some of the agreements that have been made.  This is especially important as mediation clients are encouraged to seek independent legal advice during the process of mediation and as they are coming to tentative agreements. Once all agreements have been reached, the final agreement signed and approved by the court, a mediated divorce agreement is as legally binding as a divorce agreement negotiated by attorneys.

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How creative can couples be in dividing the assets of their marriage?

ANSWER:

Couples CAN BE creative in mediation in terms of dividing assets. However, the agreement must be “fair and reasonable”, taking into account each couple’s specific situation. Some of the factors that a court must consider when making a division include ages, future employment potentials, abilities to acquire income and assets in the future and educational backgrounds. Through mediation, the couple consider many of the same factors in coming to an equitable and fair agreement.

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Massachusetts Post-Nuptial Agreements

By Tracy Fischer

The Supreme Judicial Court of Massachusetts found that post-nuptial agreements entered into under specific conditions would be enforceable. Post-nuptial agreements are made by couples contemplating divorce but still trying to work on their marriage and not yet ready to commit to divorce. They are able, through this type of agreement, to decide how their assets will be divided, make financial arrangements for support, and how their children will be cared for in the event of a divorce in the future. This agreement would then allow couples to feel secure in whatever the outcome of a divorce would be and allowing the couple the opportunity to put their emotional efforts into strengthening their marriage.

Post-nuptial agreements have been fairly uncommon in Massachusetts because the law has been unsettled as to whether or not the agreement would be enforceable at the time of divorce. Now that the Supreme Judicial Court has found that post-nuptial agreements are enforceable, mediation becomes an appropriate and effective process for couples to work out the terms of their post-nuptial agreement.

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The Use of An Attorney in Mediation

Many clients ask me if attorneys are necessary during the divorce mediation process. I’ve prepared the following video discussing the use of an attorney during the divorce mediation process. Attorney Tracy Fischer is a  certified Massachusetts family mediator by the Massachusetts Council on Family Mediation (MCFM). She has offices in Danvers and Newton, Massachusetts. She…

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Questions About The Divorce Mediation Process

I’m often asked about the process of divorce mediation and how a couple might get started with mediation. I’ve prepared the following video to help answer some of the most common questions couples ask when considering the mediation process. Attorney Tracy Fischer is a  certified Massachusetts family mediator by the Massachusetts Council on Family Mediation…

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Changes in Massachusetts Alimony Rulings

By Tracy Fischer

What This Means For You

The Massachusetts Supreme Judicial Court has made a controversial ruling recently regarding alimony payments. They decided that alimony payments do not automatically end when the paying spouse reaches the age of retirement.

In the recent case the spouse who had been paying alimony, voluntarily retired at the age of 65 and requested to be relieved of his alimony payments. The ex couple’s divorce agreement did not specify that alimony would end at retirement, rather upon the death of either or remarriage. The Supreme Judicial Court ordered that he continue paying alimony to his ex spouse because she had lost her job, concluding that retirement is only one factor in several when it comes to rulings on alimony modifications.

You may be wondering what this means for you. In terms of mediation, it gives divorcing couples additional knowledge to use in the discussion of appropriate alimony provisions for your particular situation. An understanding of what the courts are doing now will aid in the construction of mediated agreements so both parties can address these particular issues before they arise.

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Newton, MA Divorce Lawyer & Divorce Mediator

Newton, MA divorce lawyer and divorce mediator, Attorney Tracy Fischer is a  Boston metro family and divorce mediator with offices in Newton, Massachusetts. She provides mediation and family law services to individuals and families throughout the Boston Metro West region including Newton, Needham, Waltham, Watertown,  Wayland, Wellesley, and Weston Massachusetts. Attorney Tracy Fischer assists couples…

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Danvers, MA Divorce Lawyer & Divorce Mediator

Danvers, MA divorce lawyer and divorce mediator, Attorney Tracy Fischer assists couples in the Boston metro region who are seeking an alternative dispute resolution. Avoiding costly divorce lawyers, litigation and court fees, divorce mediation, when managed by an experienced divorce mediator, can be less costly, less stressful and more timely then bringing your divorce to…

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