July 1, 2011
Written by Lynne C. Halem
Myth 13
Fiction: If I leave the house, my wife will claim I abandoned her.
Fact: Most couples separate prior to divorce; indeed, many live apart before either party files a petition for divorce. Still, leaving the house is a major step, best executed after both parties have at least agreed on how moneys will be handled, bills paid, and children seen prior to the actual move. Claims of abandonment, though a fear among many who leave, rarely actualize. Couples who separate with a plan, whether ordered by the judge in temporary support and custody orders or designed by the couple themselves or with the help of lawyers and/or mediators, is the key ingredient to easing some of the pain, fear, and confusion of separation.
Myth 14
Fiction: I want to get this divorce done quickly; I can always go back to court if it doesn’t work out well.
Fact: It is quite amazing how many individuals actually believe the courthouse stands open with judges willing and able to redress any and all inequities that they feel were perpetrated under their divorce decree or to fill in the missing pieces left undone in the rush to divorce.
While it is true that individuals may return to court to reopen issues revolving around child and in some cases, alimony, returns to court need to be based on a change in circumstances, not just a desire to change a ruling. Others return to court, claiming judicial error or fraud on the part of a spouse. The latter cases are by no means simple and, without exception, require expenditure of much time and undoubtedly, if individuals have legal representation, much money.
It is far wiser and less emotionally and financially costly to reach a settlement that feels fair and workable to both parties, now and in the future, than to anticipate making future changes to your settlement.
Myth 15
Fiction: Mediation is only for couples who communicate well.
Fact: Mediation certainly is a process based on communication. However, it is the mediator’s responsibility to facilitate communication between spouses. It is the mediator’s responsibility to help each spouse express his and her needs, concerns, and priorities and to enter into a process built on creative problem-solving. The end goal is for the couple, with the mediator’s knowledge, guidance, and skill, to structure a settlement that maximizes resources, balances needs, and proves workable in the present and future.
Entering mediation with good communication skills is certainly helpful but rarely essential to the success of the mediation. Ironically, even those who have a history of communicating effectively have trouble knowing and expressing their needs when facing divorce. These couples, too require guidance and facilitation in grappling with thoughts and feelings in this confusing time of their lives.
Myth 16
Fiction: If I enter mediation, I cannot have legal counsel.
Fact: NO, it is never true that individuals who elect to mediate renounce their right to have legal counsel.
It is true that people in mediation use legal services in different ways. Some individuals are referred to mediation by their lawyers, having counsel available to them throughout the process to answer questions and/or to review proposals. Then there are others who seek legal counsel during the mediation process, and still others who wait until the end of the process, using their attorney to review the terms of their agreement prior to submission of the document for judicial approval. Then, too, others elect not to use legal services.
The mediation population is not in fact all that different from other divorcing litigants in their use of legal services, varying from those who rely exclusively on legal counsel for settlement to the increasingly growing segment of the divorcing population who mount cases pro se.
Myth 17
Fiction: As the primary caretaker of the children, I’ll be awarded sole custody.
Fact: Massachusetts courts strive to structure custodial awards that are in the children’s best interests. Herein lies the problem. Sometimes teams of experts are hired to determine the base interest of the children, a term that in and of itself evades definitive precision. Unfortunately experts often disagree, as do the parents. No parent can count on surety in awards of custody regardless of whether or not he/she has have been the primary caretaker. Too frequently, there are two loving parents vying with each other. The court is asked to choose between them or to force them to collaborate in raising their children. The irony and tragedy of the dilemma are not to be given shrift.
Parents and children would certainly emerge victorious if they could put aside their shortsighted view of triumph and structure a custodial arrangement that works for all parties. To leave the decision to the courts will almost surely guarantee a ruling that no one will find satisfactory, least of all the children caught in between their disgruntled parents.
Myth 18
Fiction: Since I have not worked outside the house for five years, I can count on alimony.
Fact: An alimony award is never a guarantee. In assessing your need for financial assistance and your spouse’s ability to finance your needs, the court employs seventeen factors which include your employability, the division of assets, your age, health, occupation, and length of marriage, to name a few. An alimony award is not viewed as an end product of marriage. However, there are also different forms of alimony, some geared to provide time and even training to re-enter the workplace, others intended to reimburse spouses for financial sacrifices made during the marriage such as helping a spouse to secure a professional degree.
Alimony is never a foregone conclusion or solely a formulaic determination. There are many factors to be considered in structuring an alimony agreement, not least of which are the amount of money to be paid, for how long and the contingencies, if any, for adjustment and/or termination.
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