Restrictions on Transferring Assets During a Divorce

Under Rule 411, parties to a Massachusetts divorce are prohibited from liquidating, transferring or otherwise disposing of marital assets while the case is pending, except for the purposes permitted under the rule. Specifically, Subsection 1 of Rule 411 provides:

Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by order of the court.

In addition to limiting how parties may treat marital assets, Rule 411 also prohibits parties from incurring debt in each others’ names or canceling any medical insurance, life insurance, car insurance or disability insurance policy.

At its most basic level, Rule 411 seeks to prevent the transfer or disposal (i.e. spending) of any marital assets once a divorce is filed, subject to common sense exceptions such as paying one’s legal expenses and covering reasonable living expenses. Although M.G.L. c. 208 s. 34 broadly defines marital property to include the “any part of the estate of” either party, in practice, Rule 411 is most applicable to jointly held assets, such as joint bank accounts.

Parties (and the mediators and attorneys advising them) must be cautious about how they treat assets once a complaint for divorce has been filed and served. It is not enough for a party to intend to spend the money in manner permitted under Rule 411. They must actually spend the the money in this way. Parties who transfer or withdraw marital funds under an exception to Rule 411 should make sure they actually use the funds for a permitted purpose. The mere fact that a parties intends to use the funds for an acceptable purpose at the time of the withdrawal is not a defense if, after the transfer, they fail to use the funds for their original purpose.

Life Insurance and Divorce

Divorce mediation often deals with decision making in the event of the death of one spouse or both. Here the analysis can, and should be, quite expansive. It is important to first analyze existing coverage and the original rationale for purchase. Let’s say the couple purchased a policy to provide for mortgage payoff and there is no longer a mortgage on the real estate, this coverage may no longer be warranted. Further, it is important to consider not only the after death protection that needs to be provided, but the cost of the coverage.

The central questions can be reduced to a short list.

• What expenses/obligations require protection in the event of death and how do they change over time?
• In what manner can we afford to provide this coverage and how will the obligation be paid?

Mediation offers a forum in which the analysis of what kinds of protection exist, be it insurance and/or assets, is conducted in a thoughtful and thorough manner. Some couples find they are, in effect, over insured, whereas others are under insured or uninsured. The process enables couples to separate emotion and fear from reality. Planning for death protection at the time of divorce has different priorities and objectives than at the time of marriage. With the guidance of a knowledgeable and impartial mediator, the couple is able to distill fact from fantasy and fear and plan ahead based on a real-time analysis of the family’s present and future need for protection in the event of death.

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.

Co-Parenting and COVID-19: Mediating Child Custody Disputes

With many Massachusetts courts closed to slow the spread of the COVID-19 virus, mediation has become an effective way to enforce or adjust custody arrangements. Parents are finding that mediation can assist them in reaching an agreement even if they are not able to meet face to face to discuss their parenting arrangements.

Many single and separated parents have genuine concerns about their child’s health during the coronavirus. Some of these concerns stem from the child’s transition from one parent’s home to the other. This may include concerns about who has the other parent been exposed to and if they have taken the same level of precaution to remain virus free. Meanwhile, other concerns arise out of the degree to which one parent may be embracing “reopening” – in the form of haircuts, camps, and dining out – while the other parent takes a more conservative approach to distancing.

Disagreements over withholding parenting time due to coronavirus concerns have become common, both in Massachusetts and throughout the rest of the country. To add to the confusion, many parents find themselves facing disproportionate risks. One parent may have an elderly family member in the home who is particularly vulnerable to the virus. Another parent may be returning to work full-time, necessitating the risks involved with childcare and summer camp for children.

Due to the Coronavirus, courthouses in Massachusetts are still closed to regular business, and the majority of hearings are being held on matters deemed to be an “emergency.” In many cases, disputes over parenting time do not rise to the level of a true emergency necessary to get before a judge. Unfortunately, this means that the court is effectively closed to parents who are being denied their parenting time by the custodial parent, or who have serious concerns about their child’s well-being while they are with the other parent. Given the massive backlog of cases that has built up since the shutdown began, obtaining relief through the courts is likely to remain slow well into the fall and winter.

Many custody disputes are grounded in legitimate concerns about the child’s well-being shared by both parents. When parents both recognize a risk, filing an emergency motion is not always necessary. Instead, parents can resolve their differences by mutual agreement without the need for an adversarial court hearing and judge’s ruling. Even for parents who disagree, alternatives to litigation exist.

Mediation can help parents quickly resolve their parenting disputes with out-of-court agreements that protect both parents and children and serve as a temporary custody arrangement for the duration of the crisis.

Perhaps best of all, this can all be done through video mediation, using common platforms like Zoom or Skype. This gives parents flexibility – both in time and location – minimizing the in-person contact that can spread the virus while providing the face-to-face communication which is necessary when dealing with the best interests of the children. Mediation is a far better resource for parents to utilize in this uncertain time rather than trying to file an emergency motion which may not be deemed a true emergency and therefore not be heard by the judge causing further stress and discord between parents.

For more information or to schedule a free, no-obligation, private, confidential consultation visit FalmouthMediation.com or call 508-566-4159.

One Voice for Equality and Peace Through Justice

The Academy of Professional Family Mediators

We, the Academy of Professional Family Mediators, urge people everywhere to unite in one voice for equality and to take action towards a genuine national peace that can only be established through justice for every person. 

In one voice for equality, The Academy of Professional Family Mediators supports all African American citizens and stands united with the peaceful protestors who honor the memory of George Floyd, the most recent victim of the long-standing problem of systemic racism in America. 

In one voice for equality, we acknowledge that meaningful resolution to racism requires that oppressors change their understanding, their beliefs, their attitudes, their emotions, and their behaviors that go against advancing justice for each and every citizen. 

In one voice for equality, and as American citizens, we take responsibility for promoting an end to the inappropriate use of violence by law enforcement against minorities, and for ensuring equal justice under the law for all. 

While, as professional family mediators, we inherently believe in the value of compromise, there is no compromising the need to end systemic racism in our civil society. There is no compromise for victims of oppression and discrimination. We speak in one voice for equality with all peaceful protestors.

We encourage each citizen of America to take whatever personal action, within their means, to promote our collective goal for justice. This includes speaking out boldly against each instance of injustice that you may encounter, whether it involves a personal acquaintance or an elected official. This includes seeking any and all opportunities for the resolution of conflict in peaceful and non-violent ways. 

We must all be mindful of the fact that, right now, we are living in a history-making time, with the current crises providing a profound opportunity for meaningful societal change in its values, structures, and actions. Right now, more than ever, Silence is Compliance. 

In sharp contrast, our collective voice for equality is power.  Let us use our collective power for the important changes that need to occur. We are all in this together, and we must speak in one voice for equality. Please join us!

How to Talk to Your Ex Without Causing a Fight

By definition, difficult conversations are, well, difficult! They are unpleasant, uncomfortable, and no one’s idea of a good time. They are also very often, exactly the kind of conversations you end up needing to have with your ex. Knowing how to handle those conversations, and how to talk to your ex without losing control or making yourself crazy is an essential post-divorce skill.

Thankfully, because it is a skill, you can learn it. You can learn how to have rational conversations with your ex. You can do that even if you and your ex haven’t had a civilized conversation in years.

Learning how to talk to your ex calmly and productively takes time, patience and practice. It also takes an enormous amount of self-control.

Yet the benefits can be huge.

Being able to talk to your ex like a normal human does wonders for your emotional health and your blood pressure. You become better parents. You also have happier kids because they don’t feel caught in the middle.

In this excellent blog posting, Karen Covey offers 10 tips that can help you transform a potentially awful conversation into one that – even if it’s difficult – is still civilized.

Adult Children of Divorce Give Insights to Divorcing Parents

If you and your partner are getting a divorce with children under your care, you’ll want to make sure they grow up as unscathed as possible. In order to understand the impact of divorce on children on an emotional and psychological level, in this excellent blog posting, Cordell & Cordell interviewed adult children of divorce about their childhood experiences.