Divorce Mediation

How much guidance do mediators offer couples and families with regard to children’s living arrangements after divorce?

• Do mediators address the research being done on negative effects on children of separation and divorce?

• Is it better for children to live one-half time in both parents’ homes or have a primary residence?

• How much planning to parents need to do for their children’s college education at the time of divorce?

• As children get older and they have more commitments, how can the agreements a couple make in mediation change over time?

Q: How much guidance do mediators offer couples and families with regard to children’s living arrangements after divorce?

Experienced mediators can offer important and useful information about alternative arrangements which have been used by separating and divorcing couples as well as about the descriptive and experimental research which has been done with regard to outcomes for children of separation and divorce.

Q: Do mediators address the research being done on negative effects on children of separation and divorce?

Divorce when carefully considered, with alternatives explored, is often necessary for couples and their children and may over the long run be even better for children than if parents with serious differences and problems stay together. Over the short run children may experience difficulties with the separation of their parents. In mediation, parents are encouraged to realistically anticipate possible difficulties for the children with the children. Parents are also encouraged to let the children know that together, as parents, they will do everything possible to mitigate the negative ramifications for their children.

Q: Is it better for children to live one-half time in both parents’ homes or have a primary residence?

Our experience and the research we are acquainted with indicates that the really critical determinants of children’s positive outcomes after divorce are not the structures of their living arrangements, but the manner in which the parents learn to deal with one another, to handle conflict between them and to continue their mutual investment in the children’s psychological, emotional, academic and spiritual growth.

Q: How much planning to parents need to do for their children’s college education at the time of divorce?

Given the high costs for college, it is important to address how college will be paid for, and to begin a savings plan, relatively early in a child’s life. Significant time in mediation is spent addressing how parents will each contribute to their children’s college educational costs.

Q: As children get older and they have more commitments, how can the agreements a couple make in mediation change over time?

Change and flexibility are built into agreements with regard to all aspects concerning children. Growth and development need to be accounted for in the couple’s original Separation Agreement which is entered into the Judgment of Divorce. All matters regarding children, in addition, are modifiable by a court of competent jurisdiction.

Why should a spouse who has worked all of his/her life share a pension with a spouse who has not been working?

• How do spouses who have cared for children at home plan for and support themselves in retirement?

• What options does mediation offer the couple with regard to dividing the marital home?

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

Q: Why should a spouse who has worked all of his/her life share a pension with a spouse who has not been working?

The probate court in Massachusetts has come to recognize marriage as a partnership. Based on this partnership theory of marriage, the contributions of a spouse who has remained at home and been the caretaker for the children are seen as equal to the financial contribution made by the spouse who works outside of the home. The spouse who has remained at home has enabled and assisted the other spouse to remain employed and earn income to contribute to a pension plan. During their marriage, both partners counted on this plan for their retirement.

Q: How do spouses who have cared for children at home plan for and support themselves in retirement?

A spouse who has been married over ten years is entitled to receive 50% of the ex-spouse’s Social Security benefits, or their own benefit, whichever is greater. At the ex-spouse’s death, the former spouse is entitled to 100% and may begin collecting at age 60. An ex-spouse’s remarriage would terminate the entitlement to collect based on the ex-spouse’s benefit, unless he has died and the spouse remarries after age 60.

In addition, a spouse who has not worked is entitled to equal shares of any pensions that were earned during the marriage. If, after child support ends, a spouse is not able to return to work, the issue of alimony may arise.

Q: What options does mediation offer the couple with regard to dividing the marital home?

Couples do not have to sell their home at the time of divorce. Through the mediation process they may decide to continue to own the house jointly for a period of time, or one may decide to buy out the other’s share in the home, or they may choose together to sell the house. Joint ownership for a period of time may serve to allow the children to reach a certain age in a stable environment, and may provide the opportunity for their joint asset to grow in value, or for one party to gather the resources to buy the house.

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

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.

A couple is barely making it now, financially. How will they support themselves and their children when they separate or divorce?

• How much guidance do mediators offer to couples with regard to a fair division of assets, and with regard to a fair division of support of the children?

• If a parent desires that the other return to work to help support the children, can (s)he influence the other parent to do so in mediation?

• Do all couples in Massachusetts use the Child Support Guidelines promulgated by the Court?

• Do couples need to exchange financial information about their changing finances while their children are growing up?

• What happens if the incomes of parents go up or down during the time they are supporting their children?

Q: A couple is barely making it now, financially. How will they support themselves and their children when they separate or divorce?

Marital separation is always more costly for a family as compared to living in one household. Through the use of budgets, which include monthly planning, a couple can review their spending habits, and also determine where modifications can be made in order to maintain a more balanced budget. Often, the mediator is able to offer suggestions and options regarding spending and saving habits.

Q: How much guidance do mediators offer to couples with regard to a fair division of assets, and with regard to a fair division of support of the children?

Every couple receives information about “Chapter 208 section 34”, the law in Massachusetts which outlines the factors a judge would consider in making an equitable distribution of marital assets. Mediation clients may use an equal division as a starting point, and then give one another rationale for how much and why the distribution should vary from an equal division. In fact, mediators provide couples with a high degree of guidance by providing examples of alternative perspectives with regard to a fair division of their assets.

In a case where the children live with one parent primarily and visit with the other, the Child Support Guidelines are considered to be “presumptive” by a family court. Where parents share “custody”, having the children live with each of them approximately an equal amount of time, they may use the guidelines as a point of departure, and factor in a ratio of children’s expenses to their respective incomes.

Q: If a parent desires that the other return to work to help support the children, can (s)he influence the other parent to do so in mediation?

Not infrequently a husband or wife will “request” of the other parent that he or she return to work, or increase part-time hours, to aid in the support of the children. A mediator might help the parent phrase the desire as a request, and as one of the options available to increase total divorced family income. A mediator might help the other parent hear the request and help that person articulate beliefs about children’s well-being while being with a parent versus being with child care personnel. Together the parents can decide how their interests in supporting the whole family can be balanced.

Q: Do all couples in Massachusetts use the Child Support Guidelines promulgated by the Court?

Many couples whose children live with one parent primarily use the Child Support Guidelines to determine their relative contributions to the support of the children. Those parents who use other methods of determining relative contributions of the parents to the children’s support are those:

• *whose children live with them approximately equal time

• whose children have special needs or aptitudes

• who have unusually low or high housing costs or;

• who have incomes in excess of the Guidelines

Mediators assist the couple in balancing the needs for child support, expenses of the children and their incomes.

Q: Do couples need to exchange financial information about their changing finances while their children are growing up?

Couples are given the option of including in their Agreements, provisions that deal with changing future finances and give them the ability to modify the child support amount when changes occur. These provisions usually call for a periodic exchange of financial information such as tax returns and W-2 forms.

Q: What happens if the incomes of parents go up or down during the time they are supporting their children?

All child support orders are modifiable based upon a material change in circumstance. Mediated agreements often provide the couple with the ability to review and modify their support order in the event of a significant change in financial circumstances, and may do so without resorting to the adversarial process.