In the midst of Covid-19, many people feel “stuck” – stuck at home with their spouse or partner but wanting to end the relationship. With the Courts temporarily closed, people may feel there is “nowhere to go”. There are ways in which you can start the process of divorce without court, and find a way to become “unstuck”. You can start preparing for divorce or other family law process without going to Court, and using the time you do have to make preparations for moving forward. How do you prepare? Continue reading “How To Prepare for Divorce – Get Unstuck”
Use Mediation or Collaborative Law for Resolving Divorce Out of Court
Albert Einstein said, “In the middle of difficulty lies opportunity”. With limited access to the Courts right now due to Covid-19, why not try to resolve your divorce or other family law conflict out of court?
You don’t have to wait for the Courts to reopen, and in fact you shouldn’t – even when they open, they have a back log and it will take some time for your case to move through the Court system. You can turn these extraordinary circumstances in which we are currently living, into an opportunity to resolve your case using an out of court dispute resolution process such as Mediation or Collaborative Law.
In Mediation you hire a neutral third party who is usually an attorney, who works with you and your spouse to resolve your differences and reach agreement.
In Collaborative Law, both you and your spouse have attorneys at the table who are advocates not adversaries, and who take a settlement approach rather than the litigation route to help you and your spouse reach a mutually beneficial agreement for the family. Continue reading “Circumstance = Opportunity”
Massachusetts Probate and Family Court Standing Order 2-16, which can be found at https://www.mass.gov/doc/probate-and-family-court-standing-order-2-16-parent-education-program-attendance/download, requires all parties to a divorce action, and at the Court’s discretion parties in other types of actions such as paternity or contempt, to participate in a Parent Education Program. The program is only required if the parties have minor children under 18.
The purpose of the program is to give parties with children some tools to help them work together for the best interest of their children post-divorce. This includes information that will help the parties with co-parenting after divorce, such as giving them some information about child development issues to help children cope with divorce and providing tools that may help the parties have more effective c-parenting communications and therefore less conflict. Continue reading “Massachusetts Court Required Parenting Education Program in Divorce and other Family Law Actions”
Are there “Seasons” for Divorce?
Vacations, outdoor events, the beginning of a new school year – for many, August is synonymous with family time. But for some, this month marked the season for divorce.
Research from the University of Washington found the number of divorce filings in a number of states consistently peaked in the months of August and March. What’s behind the seasonal up-tick? Several factors could be at play. “Rather than a time of bonding, the holidays and vacation periods can often lead to disappointment as couples and families discover that increased time together may exacerbate existing problems rather than help mend them,” Anne Tamar-Mattis, attorney and Executive Director of the IACP said.
Tamar-Mattis is the Executive Director of the International Academy of Collaborative Professionals (IACP), a global membership-based organization that aims to keep these divorcing couples and their children out of court by using Collaborative Law. Continue reading “Tis The Season for Divorce (and Dispute Resolution)? Why More Marriages end in August”
You have finally decided to move forward with divorce and to consult with an attorney. However, you don’t know what to expect. You have heard horror stories about what happens in Court, and you are concerned about the impact of divorce on you and your family, both emotionally and financially. You really want to work things out by agreement with your spouse, but don’t know how best to do that.
You have heard about Collaborative Law and Mediation; or maybe you haven’t heard either of these processes, but the lawyer you consult tells you about them. Or what if your spouse consults with a lawyer first, and tells you that they want to proceed with divorce using the Collaborative Law Process or Mediation? Continue reading “Collaboration: What does it really mean?”
Cryptography is defined by the Oxford English dictionary as “The art of writing or solving codes”. If you find the “key”, you can unlock the “code”.
Divorce or other family breakups often result from parties not being able to communicate, or decrypt the other’s “code”. Lack of communication and understanding are at the root of much marital discord; no matter how hard they try, whether it is through talking, writing, couples counseling, texting, email, crying, apologizing, doing all things humanly possible to understand one another, sometimes couples just can’t crack that code. Continue reading “If Only I Had the Key….”
Each party in a divorce must complete a financial statement form and file with the Court to get divorced in Massachusetts – it’s required. Yet the financial statement form comes with little if any instructions. Most clients and their attorneys hate these forms because they’re time consuming and painful to complete. However, learning why the form is necessary and how it’s used may make you love (or at least not hate) the form!
7 tips for completing the family court financial statements:
- The Court financial statement form incorporates the concept of full disclosure of income, assets, expenses, and liabilities. Why? Because in divorce you are dividing or reallocating income, assets, expenses and liabilities, and can’t do so without knowing what those are. The Court financial statement form that each party completes, lays it all out there for both parties to see. This allows the Court to be sure that the parties have a shared understanding of their finances, and to determine if an agreement with respect to those finances is fair and reasonable.
Many of you may know that my mother, who is a retired college Art History professor and an incredibly fine artist (some of her work adorns our office and much of it my home), has designed all of my office holiday cards for many years. Each design for each year’s card is hand drawn by my mother before being incorporated into the holiday card. My mother is now 87, and did this year’s card too!
I have had many wonderful responses from clients and business associates to my mother’s holiday cards. In a world where everything sometimes feels too much the “same”, having a holiday card that is personal and unique each year has been an important component of how our office sees itself, in striving to provide personal services to each of our clients for their individual and unique needs.
One of my mother’s past cards featured a lion and a lamb – this holiday card appears with this blog. A client of mine was particularly taken with this holiday card, and told me that the card spoke to him. When asked what he meant by that, he said he saw the dichotomy between the lion and the lamb – to use his words, clients and/or attorneys can be “reasonable”, or they can be “strong” in their approach to a case and resolution. He didn’t see the holiday card as depicting ferocious vs. fearful, or even peaceful co-existence, but rather as representative of the two personas of what clients are “buying” from attorneys—and that creation of a balance makes for the best resolution. The client felt the card was simple but had a richness to it, and that its message resonated with him while going through the experience of divorce, as he sought a reasonable approach for all involved backed by the (lion’s) strength when appropriate.
Clients speak in many powerful ways if you listen. In thinking about my client’s comment regarding the holiday card, I realized how important it was for him to not just have legal representation and an advocate, but also to have representation and advocacy that comes with understanding and compassion and balance. It isn’t always so easy – and perhaps some clients want just the lion! However, divorce is not one-sided – there are always two parties with different needs and interests. Considering not just your own needs and interests, but those of the other party, and taking a balanced approach almost always results in a better negotiation and outcome.
Divorce is difficult and painful. We all know that. Yet you and your attorney don’t have to be solely lions or (the more passive) lambs. Out of court dispute resolution processes such as mediation and Collaborative Law, often provide a better environment and approach for bringing both the lion and the lamb “to the table” in the same room at the same time. Try it. You might find that the lion won’t eat you, and the lamb won’t get eaten. Instead, you will have a good balance for reaching a settlement that you, and your children and/or family, can live with and with which you can find peace — which is, after all, the message that comes with a holiday card.
Copyright 2014, Karen J. Levitt, all rights reserved.
One of the key reasons that Massachusetts reformed its alimony law in the Alimony Reform Act of 2011, was because many people thought it was unfair that the Court could award “lifetime alimony” in divorce cases.
Alimony payors found lifetime alimony to be unfair because they were required to pay alimony long after they had retired, and had less income than when they were working. Retirees often found themselves living on a fixed income but paying a large alimony obligation based on their former income. However, when retirees approached the Court to lower their alimony payments, it was always uncertain what would happen. On the other hand, the spouse who was receiving alimony often thought it was unfair to cut off alimony just because their former spouse had retired. This was especially true where the recipient spouse had relied on receiving a certain amount of money, and may have bargained for a different settlement if they knew alimony would be lowered or terminated when their former spouse retired. Thus, it was no surprise when the legislature included language in the new alimony statute to address this frequently litigated issue. The law in Massachusetts now provides that in most cases, alimony will terminate when the payor reaches retirement age (which is defined as the payor’s full Social Security eligibility age -you can find that out on the Social Security Administration website, it is based on date of birth). Note that the statute specifically applies the rule to general term alimony, but not to the other three types (see my previous blog “The New Massachusetts Alimony Reform Law of 2011– What Do You Need to Know?” regarding the other types of alimony).
The new law states that a payor’s ability to continue to work after retirement age is not itself a reason to extend alimony. However, at the time of the initial alimony judgment, the Court can order alimony beyond retirement age upon written findings for good cause shown. The Court can also extend alimony beyond retirement age for good cause shown, with a finding of a material change of circumstances and reasons supported by clear and convincing evidence. Post-retirement alimony will most likely be difficult to get, and the circumstances which might warrant an order or extension beyond retirement will have to be reviewed on a case-by-case basis. Some possible reasons could be the advanced age of the parties at the time of the divorce (i.e. they are close to retirement age or even beyond retirement age at the time of the divorce), the disability of the recipient spouse, or unforeseen significant changes that occur after the divorce. Some judges have been ordering alimony even after the payor reaches their full Social Security eligibility age, if the payor is still working full time and the recipient still has a need for support. Overall, an award of post-retirement alimony is more likely at the time of the Divorce than it is after the Divorce, but in either situation, the Court will have to be persuaded using the applicable standards set by the new law that alimony should be awarded beyond the age of retirement.
If you are going through a divorce, or even considering initiating the process, you should be aware that the financial ramifications are likely to be significant, and the legal issues involved may be complicated. One area that will need to be addressed is how any pension plans or retirement accounts that you or your spouse are or will be entitled to will be divided.
Get professional advice regarding the division of retirement accounts and pension plans in divorce.
Some aspects of a divorce are easier to steer through than others. Many of the technical aspects of dividing retirement accounts and pension plans in divorce are not familiar to the general public, and many retirement and pension plans are complicated especially governmental and military plans. Court orders are usually required to divide IRAs, 401(k) s, and pension plans or other retirement accounts; the type of court order depends on the type of retirement being divided. The court order necessary may simply be your court approved divorce agreement that outlines the terms of the division, upon which the institution holding the retirement funds will rely; or a special court order signed by a judge that directs the plan administrator on how to divide the retirement accounts or pension plans may be necessary. However a special court order is necessary for most private retirement accounts such as 401(k) s and pension plans, and is called a Qualified Domestic Relations Order (QDRO); a similar special court order for state and governmental retirement and pension plans may just be referred to as a Domestic Relations Order (DRO). Your divorce attorney can advise you regarding the division of retirement accounts and pension plans and whether any special court orders will be necessary in your circumstance; if a special court order is necessary your attorney can refer you to the appropriate professional to prepare those documents.
The importance of dividing retirement accounts and pension plans properly is not just that each pension plan administrator has different rules that apply that need to be complied with when dividing those assets in divorce. There are also applicable tax laws. Division of retirement accounts or pension plans in divorce are generally non-taxable events to either the transferor or the recipient. However failure to comply with plan or IRS rules can result in serious tax consequences for one or both parties; this can be avoided by getting proper legal and other professional advise during your divorce.
Weigh your options carefully with your divorce attorney, and consult with pension and/or financial professionals as well where appropriate.
It is important to understand your options when considering the division of retirement accounts and pension plans, including date of division and the formula for division. For example, pension plans often include other components such as pre and post-retirement survivor benefits, and cost of living adjustments. Using a pension specialist can help the parties and their attorneys understand the retirement or pension benefits involved and how best to divide them. In addition, in situations in which the divorcing spouses are considering trading off the value of a taxable asset for the value of a potentially non-taxable asset (e.g. a retirement account for house equity), a financial tax advisor can be extremely helpful in providing additional guidance. It may seem like a lot of extra effort and there will be additional cost in using a pension specialist or financial professional, but keep in mind that getting all the details right is worth the time and trouble to make sure everything is handled correctly. Your case may not be that complicated, or require any additional experts; but you need to be sure you get educated about the division of retirement accounts and pension plans in divorce so that you can make an informed decision and understand all the ramifications even after divorce. Pension and retirement accounts are valuable assets that are important to protect and divide equitably in divorce.