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.

How a Litigated Divorce Ruins People

The antagonistic nature of litigation often results in otherwise cooperative people thinking that their spouse is out to get them, even though they’re not. It creates a win or lose mentality that convinces people they can’t “win” unless their spouse “loses”, and it sets up parents to struggle with co-parenting for the rest of their lives. Only the healthiest of individuals can survive the process with less than utter hostility toward their prior mate.

In this excellent blog posting, Nancy Hetrick the owner of Smarter Divorce Solutions, LLC, writes about how, for the majority of couples, the courtroom is not the best option for your divorce.

Assets Can Be Complicated: The Use of Experts

Many people don’t realize that divorce mediation can include outside experts who assist divorcing spouses with complex financial issues. Parties will often retain third-parties with special training to assist in the divorce, such as a CPA, business planner or financial planner. For high net worth individuals, experts can also include tax professionals, appraisers, and employment benefit experts. Thankfully, the experts and financial appraisers used in litigation can also be used in mediation.

Not all assets are equal. The value of assets can fluctuate wildly. In an extreme example, a painting by the graffiti artist Banksy that was partially destroyed by a shredder hidden in the frame right after it was sold at auction. (The value of the painting must have gone down, right? Wrong! The notoriety surrounding the shredding stunt made the painting more valuable.)

Sometimes spouses need an expert simply to determine the increase or decrease in value of a marital asset over the years. Other times, parties need an expert to set an initial value. Determining the current value of an asset, as well as whether it is likely to appreciate or depreciate, is often greatly aided through the use of experts.

Determining the value of different assets may take different experts. For example, determining the value of a small business requires a different expert than a real estate appraisal.

Even if you do not own a now-shredded painting by a famous artist, determining the value of your assets is necessary for a divorce. After all: to divide your marital assets equitably, you first need to know what those assets are worth.

An important difference between mediation and litigated divorce is this: In mediation, spouses often agree to retain a single expert to provide analysis. In contrast, spouses who are litigating their divorce often retain separate experts, then expend thousands in legal fees debating which expert has the correct view.

In short, even if you and your spouse have complex financial assets to divide, mediation is just as equipped as litigation to see the case through to the end.