Modifying a Child Support Order in Massachusetts

In general, Massachusetts child support orders can be modified at any time until the final emancipation of a child through a Complaint for Modification filed by either parent seeking a change in child support.  The amount of child support is determined by the Massachusetts Child Support Guidelines. A child support judgment may be modified for any of the following reasons set forth in the Guidelines as follows:

• There is an inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines.
• Previously ordered health care coverage is no longer available.
• Previously ordered health care coverage is still available but no longer at a reasonable cost or without an undue hardship.
• Access to health care coverage not previously available to a parent has become available.
• Any other material and substantial change in circumstances has occurred.

Most child support modifications are driven by a change in the child support guideline calculation order based on an increase or decrease in one or both parties’ gross incomes. Such modification actions are often triggered by the filing parent’s job loss or a promotion or new job for the other parent.

Many child support modifications start with the filing of a Complaint for Contempt, which requires the parties to file financial statements, which then leads to a recalculation of child support. Similarly, a major change in parenting time – i.e. a change in primary physical custody between parents, or a change from shared physical custody to sole custody for one party – can also trigger child support modifications, since amount of child support under the Guidelines varies widely based on whether the parties share physical custody of the child(ren) versus one parent serving as the primary custodian.

Courts can also modify child support based on “material and substantial change in circumstances”. A change in circumstances must be significant enough to render the initial child support order inappropriate under the circumstances. For example, if a parent loses a job through no fault of their own, they may seek a modification to reduce their child support, at least until they become gainfully employed again.

Similarly, if a child developed a medical condition that required the use of adaptive equipment—such as a wheelchair, or crutches—and routine physical therapy treatments, a party can request the court to modify the child support order to increase the amount of payments to help cover the additional expenses arising from the child’s medical condition. (Often, however, the parties have an agreement that they will split equally the cost of any uninsured medical expenses for the child, so a modification of base child support in that situation may not be necessary.) A parent’s illness can also justify a modification in support, in both the child support and alimony contexts. (Indeed, the law includes very specific remedies if the child support paying parent begins receiving SSDI.)

The Guidelines also provide judges broad discretion to modify child support for unusual, unexpected circumstances affecting the lives of a party or child. Perhaps a parent’s new spouse contracts a terminal illness. Perhaps a child is admitted in a special education facility full-time. Perhaps one parent hits the lottery. Courts can increase or decrease child support based on a wide variety of factors. However, to the extent that the new child support judgment represents deviation from the Child Support Guidelines, judges are required to enter written findings explaining the purpose of the deviation.

Improving Co-Parenting Communication

Divorce signals the end of your marriage, but your relationship with your ex-spouse never really ends if you have children.

You are no longer husband and wife, but you are co-parents, and limiting disagreements and working effectively is critical to aiding your children’s development. Of course, finding ways to get along isn’t so easy if there is a high amount of conflict in your relationship.

Here are several tips you might find helpful as you work to improve communication with your ex and form a healthy co-parenting relationship.

Treat your ex like a business partner
You’ve likely had a co-worker who you didn’t necessarily care for and yet you still found a way to get along with them well enough to do your job. Start thinking about your relationship with your ex in the same terms.

When you communicate, keep things simple and don’t delve into personal matters regarding your relationship with her. There is nothing to gain from rehashing old arguments.

Your conversations should focus on matters affecting your children. Communicate directly and never use your kids as a go-between, which will only cause them more anxiety.

Don’t talk down about your ex around the kids
No matter how nasty your ex acts, never badmouth her in front of the children. That is still the mother of your children and you need to try as hard as you can to remain respectful. Your kids will appreciate you for it.

It’s understandable if you need to vent from time to time. But save that for a close friend, relative or counselor. Make sure there is no chance your kids overhear the conversation.

Don’t argue in front of the children
Similarly, never have an argument with your ex in front of your kids.

You should do whatever you can to keep communication civil and polite, however sometimes blowups are unavoidable. If you do have a disagreement, try to conduct it in private out of earshot from the children. While it might be difficult to swallow your pride, you are probably better off turning the other cheek.

It’s important to realize you are never going to change who your ex is. You likely learned this fact during the divorce process. So you are better off using your energy to figure out an effective way to work together since she is going to remain your co-parenting partner regardless.

If your ex insists on starting unnecessary arguments, it might be worth considering a parallel parenting arrangement to reduce the amount of contact you have with her.

Focus on what’s in your control
Something that is difficult for a lot of parents is coming to the realization that you can’t control what goes on in your ex’s household. As long as she is not putting the kids in any danger, you must learn to let go of any control issues you have.

Your parenting style might be different from the one your ex employs. That’s not the end of the world. Come to an agreement on basic things to ensure your children’s health and safety, but it’s OK if the two of you parent differently.

Focus on what you can control and let go of everything else. As with everything, a positive attitude is key.

Don’t complain to your ex
Even if you are on good terms with your ex, it is impossible to avoid the occasional disagreement. But you want to avoid airing a laundry list of complaints every time you talk.

You’ll foster better communication by acting respectfully. Think about how you would like her to approach you if you did something she disagreed with.

Instead of snapping, “Why has Billy been staying up so late?” at her, ask her calmly, “Hey, can we talk about Billy’s bed time? I’m worried he’s not getting enough sleep and it might be why his grades are slipping.”

Quiet your support system
Your support system is critical for helping you survive divorce and will remain important as you work to become a better co-parent. But they have no business getting mixed up in your co-parenting relationship.

Far too often a new spouse or grandparent or sibling will spout off about how you and your ex are handling your co-parenting relationship. That isn’t constructive and only causes trouble between you and your ex.

You and your ex are the parents. Your support system is your support system. They should be there to help you, not critique your co-parenting techniques.

Social Media Mistakes To Avoid During Divorce

Divorce is often a messy and stressful life event that leaves you wanting to scream to anyone who will listen. It’s completely normal to want to vent when going through such a grueling process and confiding in someone with a sympathetic ear can help you cope with the daily struggle.

Airing your grievances with a few close friends or family members is one thing, but going online to disclose intimate personal details of your breakup with a few hundred acquaintances is another. In this day and age, social media allows users to quickly and easily share as much of their private lives as they please. During divorce, this can spell disaster.  More often than not, it’s best to shut down social media use completely until your divorce is final.

In this excellent blog posting, Shawn Garrison lists four common social media blunders to make sure you avoid during your divorce.

What You Need to Know About the FAFSA and Divorce

Filling out college financial-aid forms can be confusing for anyone. They may become even more confusing for families where parents are divorced or unwed, or for blended families.

The Free Application for Federal Student Aid, or Fafsa, generally requires personal and financial information from dependent students and their parents in order to determine eligibility for federal financial aid. It’s particularly important to fill out the Fafsa correctly since it “can make a huge difference in the possibility of aid,” says Carrie Fellon, a certified financial planner and financial strategist at Agili, a registered investment advisory firm in Richmond, Va.

In this excellent Wall Street Journal article, Cheryl Winokur Munk answers some of the biggest questions blended families and those with divorced or unmarried parents have about filing for financial aid.

An Age-By-Age Guide For Helping Children Through Divorce

Research tells us that children of divorce face many risks. It is a major challenge for kids to cope with the drastic change that is inevitable after their parents split and that adjustment is even tougher if they are exposed to the conflict of divorce.

How children of divorce respond to news of their parents’ split can also vary wildly depending on their age. Your 4-year-old toddler is probably going to take the news of your divorce a whole lot differently than your 15-year-old who is about to get their driver’s license.

In this excellent blog posting by Shawn Garrison, you will find an age-by-age guide walking you through how children are likely to respond to your divorce. You also will find tips for how you can help ease this difficult transition for them.

No matter your child’s age, the best thing you can do to ensure a healthy adjustment after your divorce is ensuring that they have a strong and loving relationship with both parents.

3 Myths About Divorce Mediation [VIDEO]

Susan Ingram, a divorce attorney and mediator, has put together this short video debunking three of the most common misconceptions regarding mediation.

• Mediation is not for complicated cases.
• Mediation is not for high net worth cases.
• Mediation is not for high-conflict cases.

I Don't Have to Continue to Pay Alimony If I Lose My Job, Do I?

In every divorce mediation, the payor of alimony is afraid of becoming unable to meet their obligation. This is invariably based on a fear of job loss. 

It’s true: If you lose your job, the obligation to pay alimony doesn’t go away automatically. 

Even if the job loss is through no fault of your own, such as an industry-wide layoff, your obligation remains. You are expected to find a comparable, replacement job as soon as possible. Easier said than done, of course. However, best efforts must be made to secure employment at the same level. In traditional litigation, you would have the option to petition the court for alimony modification or relief. The court would require tangible proof of diligent, exhaustive efforts to secure comparable income — resumes submitted, interviews attended, online job searches completed, etc.

Why does the onus remain with the alimony payer? For a couple of reasons. First, the recipient of alimony is relying, often trepidatiously, on an ex-spouse to provide the regular, necessary support. As goodwill, good faith and good feelings may be lacking, the recipient often must place faith in the strength of the legal system to ensure regularity of payments — which form the basis of meeting his/her own financial obligations. 

Second, as the alimony payor has far more direct control over his or her employment, it is logical that he/she carries the responsibility for it as well. A resentful payor could deliberately sabotage her own livelihood in an effort to unburden herself of a duty she perceives as oppressive and unfair. In order to balance two risk factors inherent in alimony payors — control and high emotionality — the legal system demonstrates more rigidity than flexibility when holding the payor to his/her commitment. 

The good news, as usual, comes in the option of mediation. In mediation, spouses can consider significant changes of circumstances when formulating their settlement agreements, before a crisis ensues. In the event of a job loss, rather than having to petition the court for relief, parties can return to mediation to create an interim support and financial restructuring until gainful employment is restored.

Loss of a job is not going to relieve the payor of an alimony obligation, but in mediation, even post-divorce, we can approach economic vicissitudes in a civilized manner intended to address the needs of both parties.

Divorce Is Costly. Divorce in Retirement Is Costly and Complicated.

Few things savage your personal finances more than divorce. The closer you are to retirement, the worse the damage.

“You’ve got a couple that planned their whole retirement to look one way,” says Nancy Hetrick of Phoenix, a divorce financial analyst, “and now the same money that was going to do one retirement has to do two of them.”

This excellent blog posting by Neil Templin in Barrons talks about the impact of "grey divorce."

How Do You Best Help Your Kids Understand Divorce?

If divorce is confusing for adults, imagine how it is for your kids. It seems like everything in their world is changing and they have no control over any of it. It’s up to you to help your kids understand divorce.

We often hear that children are resilient and adaptable.

I also hear parents say that the kids know that the marriage is ending but they don’t know much about why. The parents think they’ve kept their disagreements private. They think they’ve shielded the kids from the undercurrents in the troubled marriage.

The kids seem to be doing just fine. They’re carrying on as normal.

But is this what is really happening?

Even when you think you’ve protected your kids, they know more than you  give them credit for. Children know something isn’t right because their normal has changed. They see changes in routines at home.

They may be carrying on their usual but is that because they’re keeping a lid on their emotions? Are they struggling to label what it is they’re feeling? Are they trying desperately not to cause a disagreement between mom and dad?

This excellent blog posting by Mandy Walker focuses on helping children understand divorce.  It also includes her conversation with Natalie Knox, a primary school teacher and lay counselor for children in crisis including general on-call trauma counseling and specialized divorce recovery counseling.

What Happens to the House in Divorce?

You’re getting a divorce and it’s time to figure out major questions like:

• What happens to the house in a divorce?
• Who gets the house in a divorce?
• Should I keep the house?
• Do I have to refinance after divorce?
• What is a divorce house buyout and how does it work?

In this excellent blog posting by Sharon Pastone of Main Line Family Law Center, Sharon interviewed 3 experts who handle divorce: a realtor, mortgage broker, and an attorney-mediator to explore these questions in more depth.

Topics covered include:

 

• Why It’s So Difficult to Decide What to Do with the House in Divorce
• Who Gets the House in Divorce, Legally Speaking
• Do I have to Refinance after Divorce? List of Options for Home in Divorce
• Due Diligence: Factors to Consider If You Want to Keep the House
• Make Sure You Qualify for a Mortgage in Divorce

Updating Important Information After Divorce

When divorce terms are finalized and binding it does not necessarily mean it is time for the divorcing couple to sit back and relax.

Divorce terms can include individual divorce tasks for the couple to complete, such as selling the marital home, dividing up accounts, and changing the title of vehicles.

In addition, during this time an individual can have tasks to complete that require their review, attention, and action. Some of these tasks may not be spelled out in the finalized divorce terms.

This excellent blog posting by Karen Sampson offers examples of tasks you should complete during divorce.

Resolving the Unknown: How Mediation Helps You know the Future in Custody Cases

A big problem with litigating a custody arrangement are the unknown consequences of asking a judge to determine what’s best for your child. A judge can consider an almost endless variety of child-related factors when determining custody and parenting time.  The “best interest of the child” standard is incredibly broad and vague.

In a 2017 Appeals Court case, the probate and family court judge’s ruling giving primary physical custody to a parent who had only recently had supervised visitation was sent back for a new trial. The Appeals Court ruled that the judge’s findings were unclear, and further noted that even without a definitive “list” of criteria for judges to consider in custody cases, relevant factors a judge to review include:

[C]onsideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child’s life, the decision-making capabilities of each parent to address the child’s needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child.

This particular case also involved recommendations from a psychologist who recommended the continuation of supervised visits with the parent who was granted custody. Although the Appeals Court clearly disagreed with the judge, the decision did not resolve the matter. Instead, the case was sent back down to the Probate and Family Court judge for further trial.

The case referenced above, Belanger v. Betanno (2017), also illustrates how long it can take for a probate and family court to resolve custody. This case kicked off in August of 2014 when a Complaint for Divorce was filed and the first motions heard. On September 16, 2016, the Judgment of Divorce entered. Thus, a decision was reached almost two years after the divorce was filed, and in the decision, the parent who received only supervised parenting time throughout the entire pending case was awarded primary custody of the child.

The parent who lost custody of the child quickly filed an appeal in October of 2016, and the laborious appeals process began. After one year of additional court filings, brief submissions and an argument before a three-judge panel, the Appeals Court vacated the judgment and remand for a new trial before a different judge.

That’s right, a new trial. Three years and counting of litigation, and still no “winner” in sight. The Belanger case presents a somewhat extreme example, at least inasmuch as most cases do not involve such dramatic shifts in custody, with one parent going from supervised visits to primary custody back to supervised visits again. However, many litigated custody stretch on for years in a less dramatic fashion, as parents and children grind away in the slow churn of litigation. Would a case like Belanger be appropriate for mediation? Perhaps not, given the severity of allegations made by each parent. Nevertheless, every divorcing parent should be mindful of how a case like Belanger can remain unresolved in the court system for four or even five years.

Mediation accommodates the needs of each parent far better than litigation. Mediating parents are encouraged to look at the whole picture, and not just one factor, when creating the parenting schedule. Instead of encouraging parents to identify their opponents’ weaknesses and points of leverage, mediation focuses on identifying common goals. Flexibility by one parent is rewarded by flexibility from other. In tensely litigated cases, such shows of flexibility are often simply impossible.

10 Things You Need To Know About Divorce and Taxes

When you divorce you will be subject to a new set of rules when filing taxes. Understanding the rules governing tax in relation to divorce will help you make the best decision during your divorce process.

This excellent article by Rebecca Siggers outlines how divorce changes your tax obligations. The divorce process gives you enough stress, and you do not want the IRS to come for uncleared taxes at your doorstep.

1. The Date You Legally Divorce.  Your marital status on December 31st determines your tax obligations.
2. Who Takes the Responsibility of Children? According to IRS regulations, only one parent can claim dependents in any given tax year.
3. You Might Qualify for the Head of Household Status.
4. Child Support is not a Deductible Expense. Child support payments are also not a source of income. As such, if you receive these payments, do not include them in your taxable income. In short, child support payments are tax neutral.
5. Alimony and Tax. For divorces after December 31st, 2018, spousal maintenance is not tax-deductible for the individual paying. Similarly, it is not taxable income for the recipient.
6. Divorce Costs are not Tax-deductible.
7. Property Taxes. Fortunately, you do not incur taxes on property transfer. Under the Internal Revenue Codes, property division as a result of divorce is not taxable. Unfortunately, if you decide to sell the home, you might have to pay capital gains tax.
8. Retirement Benefits and Plans. How you choose to go about the sharing of retirement assets might affect your taxable income.
9. A Divorce Could Affect Your OIC Agreement with IRS. IRS offer in compromise is an agreement between an individual and the tax regulator to reduce the tax burden.  When reviewing your OIC, the IRS also looks at your current income stream, as well as your tax profile. Your income is a significant factor in your tax profile. Therefore, if you receive a massive amount in a divorce settlement, there will be a considerable change in your tax profile. And, as a result, the IRS might review your OIC.
10. Name Change and Filing Tax Returns. If you change your name, make sure you alert the Social Security Administration as soon as possible. When filing returns online, your records in the IRS have to match the SSA records. Otherwise, the system will reject the returns.

Final Thoughts

A divorce is a complicated process. However, you can make the aftermath of divorce less stressful by learning about all the possible changes, which include changes in your tax obligations and liabilities. After learning the essential things you should know about divorce and taxes, you can now decide with your spouse on what move to take to benefit both of you.

Implementing Your Parenting Plan

Too often, co-parents put together a Parenting Plan, without a lot of consideration for how to implement the plan. Sometimes one or both co-parents are optimistic and think “we’ll just handle things the way we always have…the parenting plan is just there for back-up if we have problems, and we won’t have problems.”

Until…

... in this excellent blog posting, Shannon Balk writes that what causes discord will often also cause “problems."  For example, tension can be created when one co-parent starts dating and leverages grandparents for babysitting or hires a babysitter during their own parenting time. (The “right of first refusal” clause is the most easily forgotten!)

With change, comes resistance…particularly for those who have a need for control, or for those who feel they’ve been “one-upped”.

Get Ahead of the Problems

It’s all about implementation. Hopefully you and your co-parent took quality time to put together a parenting plan as part of the finalization of your divorce, and are willing to put more time in for activating your plan. If you adopted a standardized parenting plan, these too require conversation and review. Here are some steps to help you and your co-parent implement your plan:

• Plan a meeting where you and your co-parent can review your parenting plan.
• Before the meeting, review the plan on your own and note any confusing or vague parts of the plan.
• At this meeting, put your emotions aside! This is a plan that concerns your children, and their well-being.
• Use the meeting time to come to agreement on the “what if” scenarios that might not be covered in your plan (see above tension points for examples).
• Establish a regular plan to keep each other updated on what’s working and what’s not working: a quick text before parenting time transitions, a weekly email or phone call, etc.

These steps and tips can allow for a less painful transition into co-parenting. Don’t underestimate the significance of your parenting plan!

5 Mediation Strategies for a Successful Divorce Agreement

There are many benefits to choosing mediation for your divorce.  And, as Leah Hadley writes in this exellent blog posting, it’s also important to understand and prepare for the challenges.

The decisions made in mediation can significantly impact your life for years to come. With that in mind, it can be easy to become overwhelmed during the session if you are not adequately prepared. Likewise, you may make agreements that are not in your best interest if you are tired and worn out.

These simple mediation strategies will help you make the most of your mediation session and get what you want from your divorce settlement. I strongly believe in the benefits of choosing mediation for your divorce but it's also important to understand and prepare for the challenges. The decisions made in mediation can significantly impact your life for years to come. With that in mind, it can be easy to become overwhelmed during the session if you are not adequately prepared. Likewise, you can make agreements that may not be in your best interest if you are simply tired and worn out from the mediation.

These simple mediation strategies can help you get what you want from your divorce settlement.

• Take Time to Reflect Ahead of Time
• Consider Strengths and Weaknesses
• Monitor and Control Your Emotions
• Don't Overreact to an Offer
• Take Your Time and Make a Thoughtful Decision

There are many benefits to mediation and it's more cost-effective, efficient and less stressful than going to court. Additionally, you also have a lot more control over the outcome. That said, it's important to take the time you need in order to prepare. By doing so, you’ll be much more likely to reach a favorable settlement. Your future is at stake, so take your time and plan ahead for success.

Divorce Is Destroying the Finances of Americans Over 50

I've blogged before about "Grey Divorce" - splitting up after age 50 - and the experience's traumatic emotional and financial impacts.  Grey divorce may be particularly hazardous to your emotional and financial health, far worse than doing so at younger ages.

In this excellent blog posting from Bloomberg, Ben Steverman writes about a wave of new research quantifying the damage.

The Positive Ripple Effects of a Successful Divorce Mediation

Picture this: a couple comes together to resolve their divorce issues with a divorce mediator. This results in successful divorce mediation. The couple reaches a fair, equitable agreement that they both can live with.

On its face, it is easy to see some immediate benefits provided by the divorce mediation process. The couple saved a significant amount of money by not litigating. In addition, they took control by jointly determining their own settlement terms. They chose not to have a judge who hardly knows them make decisions for them and their family.

The above being said, there are also many positive ripple effects that can result after the couple reaches an agreement in mediation. These positive ripple effects can benefit the couple and their children for years to come.

1. Mediation helps promote communication between the parties.

A mediator helps a divorcing couple learn how to communicate with each other in their “new normal” divorce environment. Divorce issues are discussed together. Solutions are figured out together. This is different than the litigation process where communication between spouses can be non-existent, as most items are discussed through the attorneys.

2. Children can benefit from witnessing their parents being respectful and civil to each other after the divorce. 

The process of working together in mediation helps the parties learn how to be civil and not disparage each other. One of the goals of mediation is to resolve divorce issues so the parties can move forward with their lives. Parties understand that if they have children together, those children will always be their common denominator.

3. Mediation can enforce the couple’s commitment to work together in the years to come.

Successful divorce mediation can give the parties the confidence that they will be able to resolve future issues together. This can also save them money. Through divorce mediation, they learn that sitting back and blaming each other does not resolve the issues. It is not uncommon for a couple attending divorce mediation to agree that they will try to resolve future issues in mediation instead of running to the courthouse. This solidifies their commitment to work together in the future and can save both parties a lot of money that they would have otherwise spent fighting in court.

4. The privacy of mediation can help avoid gossip during and after the divorce.

Third-party “know-it-alls” love to gossip and tell nasty stories about other people’s divorces. This gossip can go on not only during the divorce process but also for years after the divorce. The divorce mediation process can put a lid on this and keep the divorcing couple’s “stories” private. Divorce issues discussed in mediation occur outside of court in a private, confidential setting. There are no public displays, no fighting in court, and no airing of dirty laundry for all to see.
The divorcing couple in divorce mediation can keep a low profile. They can maintain their dignity and respect as they resolve their divorce issues in a civil, respectful and private manner. This could help avoid the possibility of disseminating nasty stories about a party’s divorce both during the divorce and in the years to come.

These are just a few of the many benefits of successful divorce mediation. If you are interested in saving money, time, and stress associated with going through litigation, mediation may just be the perfect option for you.

6 Things to Consider When Going Through a Gray Divorce

One would think that divorce in couples over the age of fifty, together for years, would not be as common as for younger couples; however, statistics say otherwise. Gray Divorce is now a trend in the 21st century. In the 1990s; 1 in 10 couples over the age of 50 got divorced. Now; 1 in 4 people are going through Gray Divorce and it doesn’t appear to be slowing down.

As a divorce mediator, I have seen an increased number of couples seeking my services after making the conscious decision to end their 20, 30 and even 40-year marriages. Unfortunately, divorcing at this later stage in life is particularly challenging.

The experience is emotionally and financially traumatic. With that number of years under your belt, truly believing your relationship stood the test of time, and then to realize that what you thought was normal marital dissatisfaction turns into an intention to file for divorce can be earth-shattering.


Retirement

With retirement looming, and the number of available working years growing ever shorter, the analysis and assessment of whether they can each retire (now separately) becomes one of the most pressing issues. Where they may have once planned on retiring, collectively, under one roof, as their resources were jointly pooled together; they are now faced with how to provide and pay for separate residences.

This places a heavy burden on couples divorcing in their late 50s and 60s. The all too often result and the only option; rather than retiring is working well beyond retirement age.

Pensions and/or Retirement Accounts

One or both parties that have accumulated hard-earned pensions, retirement accounts, etc.; (which was considered a joint asset), is now subject to division post-divorce. This becomes a major challenge to the partner that was the major wage earner during the life of the marriage, as the plans for a comfortable retirement has just been cut considerably.

On the other hand, the spouse that wasn’t working for many years, also planning a comfortable retirement, might have to now re-discover the employment market. Clearly, 50% of planned retirement funds may not be sufficient to cover the bills of the now two individual households. Can you feel the resentment at what should be your comfortable retirement years?

Division of Assets

It is a real challenge, especially in a Gray Divorce. Property owned prior to marriage usually remains with the sole owner. It is much more difficult to identify marital and pre-marital property in a Gray Divorce due to the length of time the couple is legally married. The value each party places on marital and non-marital assets is a cause for conflict as the couple tries to claim exactly what belongs to whom and the dollar amount. Please note if this goes to court, the division of all assets will be determined by the judge, not by what your lawyer will tell you is “fair”.

Health Insurance

Health insurance issues come up when only one of the parties is employed. The spouse that is not working will have their health insurance terminated. As we age, we are aware that this is when we need health insurance more than ever; as our health deteriorates and costs rise.

Life Insurance

Ouch! Yet another blow. Once a divorce is finalized, the individual holding the life insurance policy can, and usually does, remove the ex-spouse from their list of beneficiaries on their life insurance policy.

Adult Children

You would think that the adult children of Gray Divorcing parents wouldn’t be as affected as younger children. Not so. The adult children put their lives on hold in an attempt to handle this family crisis, at the expense of their own families and careers. The parents also have a tendency to lean on their adult children emotionally and sometimes financially.

In many cases, the children are forced to take sides. This typically occurs when there are uncomfortable or embarrassing details of the split. If your parents came to you today and told you they were getting divorced, what do you think your reaction would be?

Mediation As A Less Acrimonious and Expensive Way To Divorce

Not all divorces have to be acrimonious, and, in fact, many couples who divorce later in life do so as a result of a gradual growing apart. As a result, they place a higher emphasis on amicable resolution, healthy dialogue and a positive post-divorce relationship with that soon to be former spouse; rather than an all-out “War of the Roses”.

A mediated divorce can be resolved in less than one year and save a considerable amount of money and emotional pain and turmoil. You need to grieve but realize that your life goes on. The pain is normal and part of the healing process. It helps you to let go and move forward.

Can We Use Divorce Mediation to Handle That?

Mediation can handle any of the issues that might come up in your divorce. The only difference between addressing these issues through mediation or through another technique, like litigation, is how they become resolved. Divorce mediation is a process in which divorcing spouses agree to try to settle their conflicts themselves with the help of a neutral third party. Therefore, if you and your spouse know that you want to separate but are having trouble resolving a particular matter, no matter what the sticking point is, mediation can probably help.  Some of the most difficult issues that mediation can help resolve are child custody and parenting, child support, asset division, and alimony.

Mediating Child Custody and Parenting Time

Of all the issues that frequently arise during a divorce, child custody and parenting time are often among the most difficult to resolve. Parents love their children, but during a divorce it can be easy to convince yourself that the other spouse is using the kids as leverage, or will not be a good parent for them as they grow up. When these emotions take hold, it can be difficult to see past them.

Divorce mediation helps quell those emotions with a holistic approach that emphasizes cooperation and mutual respect, rather than inflaming antagonism with the combative tactics often used in litigation. Guiding parents toward making decisions that are truly in the best interest of the children involved is one reason why divorce mediation is often preferable to litigation.

Mediating the Division of Marital Assets

If you and your spouse have been professionally successful during your time together, you will likely have amassed significant assets between the two of you. Who gets what is one of the most challenging parts of a high net-worth divorce, especially when you or your spouse has a strong emotional connection to some of your belongings. Even if the main assets consist of nothing more than a house and a few bank and retirement accounts, however, deciding how to divide them can be tricky if the tension between the spouses is high.

Because divorce mediation focuses on compromise and discussion, rather than a scorched-earth policy of domination, dividing your assets fairly becomes far easier and less stressful. It also leaves you in greater control of the results, letting you keep the things that are the most important to you.

Mediating Child Support and Alimony

Another contentious issue in any divorce is alimony, otherwise known as spousal support. Similarly, child support can spark disagreement and frustration among divorcing spouses. By keeping the focus on the overall fairness of the separation, divorce mediation can handle alimony issues far better than a more combative dispute resolution process. This involves keeping in mind the long-term effect that the marriage had on those involved, and treating alimony according to its intended purpose of providing economic support to a spouse in need. By helping the parties to recognize and remain aware of these concepts, divorce mediation gives spouses a more thorough understanding of the process and lets them use that understanding to come to a collaborative decision that works for both.

With respect to child support, mediation works best by refocusing spouses on the needs of the children, rather than any interpersonal dispute between parents. De-escalating negative emotions and concentrating on the challenging economic needs of children can help unify parents on the shared goal of providing support for the family, even after the spouses are no longer together. The emotions involved in divorce – including each spouse’s anxiety about their individual economic needs after a separation – can draw the focus away from the financial needs of children. At the same time, mediation can assist spouses in understanding that maintaining two households after a divorce may require significant changes to lifestyle and spending habits, as each parent must learn how to get by with less than they may have grown accustomed to during the marriage.

What NOT To Do Before Divorce Mediation [VIDEO]

Like Jennifer Safian, a divorce mediator in New York City, I offer couples a free, no obligation consultation so that they can meet and get comfortable with me and get an understanding of the mediation process. At the end of it, I give them a list of the documents that they need to gather for their first appointment, but I never have given them a list of what they should not do.

In this excellent video, Jennifer offers 9 important ‘Do-Nots’ that can delay, stall, or even derail a mediation:

1. Do not move money out of your accounts.
2. Do not make unusually large purchases.
3. Do not commit to a new rental or purchase a new home before you understand what your financial situation will be after the divorce.
4. Do not remove your spouse's name from health or life insurance policies, bank accounts, or other legal documents.
5. Do not listen to your friends.
6. Do not dispose of assests you know your spouse is going to request.
7. Do not increase your debt.
8. Do not post negative comments on social media.
9. Do not do anything out of spite.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

Premarital Cohabitation and Alimony

Although common law marriage is not legal in Massachusetts, it is important to recognize that Massachusetts courts often consider premarital behavior in divorce cases. For example, if a spouse files for divorce after only two years of marriage, the outcome of his or her divorce is likely to be quite different if the parties lived together for ten years before getting married versus a 2-year marriage involving parties who never cohabitated before getting married.

The impact of premarital cohabitation can affect the division of marital assets, where Massachusetts courts are required to consider the length of the marriage when dividing assets. If a spouse can show that the parties shared money and assets before the marriage during a lengthy premarital relationship, this can impact the judge’s “length of the marriage” analysis. However, it is important not to overstate the value of premarital cohabitation in the asset division context. Even a lengthy period of premarital cohabitation may not be enough to generate an equal division of all assets – including those acquired before the marriage – if the duration of the subsequent marriage is brief.

Premarital cohabitation arguably has a bigger effect on post-divorce alimony. Recent Massachusetts appellate decision suggest that courts are increasingly willing to extend the duration of alimony based on premarital cohabitation. Although the premarital conduct of married individuals is easily distinguishable from common-law marriage, these legal trends are nevertheless important. What they tell us is that long-time unmarried partners – i.e. just the sort of folks who might feel they have a common law marriage – may gain some of the legal rights associated with a long-term marriage after being married for a relatively brief period of time.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

10 Benefits of Divorce Mediation

An impending divorce is profoundly stressful and vulnerable because of the potential loss and uncertainty of so many areas of life, including partnership, financial security, parenting time, home, family relationships, and future life plans.

Given these circumstances, the choice about how to get a divorce is all the more crucial. In this excellent blog posting by Divorce Magazine, Stuart Watson lists ten benefits of divorce mediation as compared to a standard, lawyer-driven divorce litigation process.

1. Save Money
2. Protect the Children
3. Save Time and Stress
4. Remain in Control (Empowerment)
5. Customize Solutions
6. Retain Privacy and Confidentiality
7. Avoid Future Legal Battles
8. Set the Foundation for Positive Parenting
9. Preserve Community Relationships
10. Help Provide Closure

Use Mediation to Keep Your Divorce Records Private

Thinking about “the public record” when you’re in the middle of a divorce isn’t easy. Your head is already spinning, your heart is shredded, and your entire world is falling apart. Keeping your private life out of public divorce records is just not your #1 priority at that point.

Yet, it matters – and not just if you ever plan on running for public office.

Employers today routinely run background checks on job applicants. While you may think that a potential employer clearly won’t care about your past marital history, if that history includes allegations of domestic abuse, adultery, alcoholism, or addiction, you better think again.

Even if you are a model citizen, that doesn’t mean you don’t have to worry about anything in your divorce. Contested divorces can get ugly very fast. People (especially spouses embroiled in a divorce war) often say things in court documents that are less than 100% true. Lawyers are paid to spin facts into arguments that support their case. They can take true facts and weave them into a presentation that paints a very different picture of reality than the one you remember.

The problem is that once something is in writing in a court record, it usually stays there forever. Courts in the United States are open to the public. Divorce records are public information. Anyone can look at any court file they want, usually whenever they want to look at it.

If you settle your divorce issues with your spouse through mediation outside of court, then the documents you file in court can be fairly “vanilla.” They will contain the information that they absolutely need to contain for legal purposes, and nothing more.  Further, if you and your spouse agree, you can also ask a judge to remove truly sensitive and personal information (especially financial account information, or information that could negatively affect your children) from the court file. A judge is usually willing to grant this kind of limited request to keep certain information private.