May 1, 2011
Written by Lynne C. Halem
Myth Seven:
Fiction: We need to get a legal separation if we want to live separately.
Fact: In Massachusetts, there is no such decree as a “legal separation”. Some couples file temporary support and custody orders that may provide, among other provisions, interim terms for the amount of moneys paid by one party to the other, liability for rent/mortgage, and health insurance, as well as interim arrangements for a parenting schedule.
Other couples seek the help of a mediator or even work out terms between themselves, agreeing how to handle monthly bills and new expenses that arise when living separately, as well as devising custodial arrangements.
Myth Eight:
Fiction: To move the divorce along, we’ll file for divorce when we enter mediation.
Fact: If you are seeking a 1A No Fault Divorce (non-contested divorce), you cannot file for divorce until you have an agreement to submit to the court. As such, you need to reach a full settlement and submit your signed Separation Agreement and filing papers to the court. You should receive a hearing date within thirty days of your filing. It is at that time that you will present your petition for divorce to the judge for approval.
Myth Nine:
Fiction: Mediation takes too long; lawyers will be much faster.
Fact: Mediation is an expeditious process, both with respect to savings of time and money. Having two people together at the same time allows the mediator to focus directly on issues without the circuitous chain of speaking to and through legal counsel. Moreover, an experienced and knowledgeable mediator can help couples to explore the intricacies of issues, planning for the present and the future. Therefore, not only do couples secure a divorce in less time, but they avoid emotional and costly future returns to court to deal with issues left unresolved in their settlement.
Myth Ten:
Fiction: There is no negotiation on support. The state has formulas which apply uniformly to all couples.
Fact: In Massachusetts, there are Child Support Guidelines, based on a couple’s gross income of up to $250,000.00 per year. This formula must be calculated for all couples with unemancipated children. However, “Guidelines” are in reality, just “guidelines”, which means that couples may submit a rationale (called “deviation”) posing a modification and/or adjustment of the Guidelines to meet their family’s needs. Moreover, the Guidelines, themselves have variables which may be applied in different ways, thereby yielding different outcomes, not the least of which surrounds the application of annual income in excess of $250,000.00.
To complicate matters further, the Guidelines do not address the determination of alimony. In Massachusetts, as of May 1, 2011, there is no formula for alimony other than the statement that alimony shall be awarded based on one individual’s need for assistance and the other individual’s ability to pay. The same factors that determine the division of property are to be utilized in analyzing the need for, and amount of, alimony.
The alimony landscape may well change. There is a comprehensive bill before the legislature which proposes an alimony formula replete with terms for the adjustment of, and termination of, spousal support.
The integration of child support and alimony pose another unresolved area of debate, an issue that needs to be tackled in the assignment of support.
All this only illustrates that support determinations are far from definitive or uniform. Perhaps more than any other area, the intricacies surrounding what kind of support, how much support, and for how long, pose thorny questions which are perhaps the hardest of all queries asked of divorcing couples. Couples who settle for agreements based on a dollar figure without consideration of changes over time are presenting an invitation for future returns to court.
Myth Eleven:
Fiction: Mediation is for couples without assets.
Fact: Perhaps surprising to those who believe that mediation is reserved for couples without assets and minimal income, the mediation population is skewed toward couples in the higher income brackets. It is these couples who appreciate the need to engage in creative problem-solving in fashioning the division of assets and the assignment of support. It is these couples who understand that creative problem-solving is hindered and even distorted by “pass-through” conversation between lawyers and clients. It is these couples who want most to determine their own future.
Myth Twelve:
Fiction: Inheritances are excluded from consideration in the division of property.
Fact: There is perhaps no area that invites more confusion and lack of clarity than that surrounding inheritances. One judge did try to impose order in this chaotic arena by devising a formula based on years of marriage. The longer you were married, the greater the percentage you received of the other party’s inheritance. However, few of the other jurists agreed to a formulaic application, leaving the principles surrounding the division of inheritance greyer than grey. Factors such as intermingling inherited money with marital holdings, using inherited money to fund marital expenses, as well as when in the marriage the money was received are all key considerations with no clear-cut measure of how to integrate and apply such factors.
The division of inheritances and of assets acquired prior to the marriage are determinations best decided by the couple.
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