WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Tuesday, August 20, 2019

Respect the Team

One of the principles of collaborative law is a team approach to joint problem solving.  The team approach to joint problem solving has numerous advantages:
  • We're smarter together: each team member brings a different background and expertise to the team.  As the saying goes, a jack of all trades is a master of none.  On a team, each person can be a master of their trade and rely on others for the knowledge they can't individually maintain.  In addition, as humans, professional team members sometimes make mistakes.  When we are open to feedback from other professionals, there is a greater chance that mistakes are minimized and corrected, ultimately offering a better service or product to the clients.
  • We're better together: each team member brings different experiences to problem solving.  Our experiences shape our ability to empathize and be creative in problem solving.  Having different experiences at the table increases the likelihood of spotting biases that could limit our creativity.  For example, on a divorce case it can be helpful to have some team members who have experienced divorce themselves, as they may be better able to identify with and explain some of the feelings that a client is expressing.  Understanding is an integral step in finding resolutions that truly match the priorities and goals of each participant.
  • We're stronger together: each team member is a resource for other team members in addition to being a resource to the clients. Difficult problems are not just draining on the resources of the clients, they can be draining on a professional team as well.  The professionals are just as human as the participants and sometimes we have issues in our lives that are triggered by the case we're working on.  When a professional team supports each other, we increase the ability for everyone to process their emotional reactions effectively and focus on joint problem solving.
  • We're faster together: each team member's ability to focus on their area of expertise allows multiple projects to move forward simultaneously.  While it may seem counter-intuitive that problem-solving is faster with more voices in the mix, when a team works together, effective delegation and coordination can make problem-solving more efficient.  In a collaborative divorce case, for example, it is possible for the parties to work with the coach on parenting issues, while at the same time the financial neutral and attorneys are making sure that the financial documentation is processed and appropriate scenarios generated. 
The key to all of this working is to recognize the strengths and weaknesses of each team member and to respect the value of every team member.  This is just as true in collaborative law work, as it is in any other team setting.  At Skylark Law & Mediation, PC we rely heavily on the strengths and unique experiences of each of our team members.  

It is all too common, unfortunately, for some people to be dismissive or rude to an administrative staff member, thinking that the person who answers the phone is not as important as the attorney or mediator working on their case.  What that person doesn't understand is that every member of the team is an integral part, who controls different pieces of the puzzle.  The clients who recognize the value of the team, benefit by lower costs because they spend less time with their attorney and mediator, using the full team for the strengths of each member.  

Being rude, disrespectful, or dismissive to any one team member is likely to cost a client more in the long run, and ultimately minimizes the potential benefits outlined above.  It's both polite and in your own best interest to respect the full team.  

If you're interested in learning more about collaborative practice consider attending the upcoming Introduction to Collaborative Law Training from the Massachusetts Collaborative Law Council, or reading this article: Improving Negotiations using Collaborative Values: A Checklist of Tools.


Tuesday, August 6, 2019

When Dividing Retirement Accounts in Divorce the Division Date Matters

There are a number of questions that must be answered when dividing a retirement account in a divorce.  Divorcing couples are often focused specifically on the amount or percentage of the account funds that they are dividing.  It is also important, though, to identify the date of that division, and whether investment changes are included or not.  This information is necessary because dividing a retirement account is not as immediate as dividing a liquid asset.

Dividing a retirement account in divorce requires a special court order (usually called a Qualified Domestic Relations Order or QDRO).  The process of obtaining and implementing one of these orders is not immediate, and requires approval by both the court and the plan's administrator.  During this time, the account will change value.  Accounts change in value due to market fluctuations, but also due to withdrawals, loans, and ongoing contributions.  All of these changes can create havoc with a division if a clear date of division is not identified.

Consider just this simple division example:

Pat and Chris agree to divide Pat's 401(k) with Chris receiving 50%.

They don't specify the date of division, but they sign their agreement on January 2, 2019.  Due to the divorce process timelines in Massachusetts their hearing date on a Joint Petition for Divorce is February 4, 2019.  Their Judgment of Divorce Nisi issues on March 6, 2019, and becomes final on June 4, 2019 (their legal divorce date).  They just hired their QDRO drafter (on April 1, 2019) and estimate that the time from starting their QDRO drafting to having it implemented will be approximately 4 months (for drafting, pre-approval, court approval, final approval, and implementation), with an estimated transfer of funds on August 1, 2019.

The following are the changing values in the 401(k)

January 2, 2019: $400,000
February 4, 2019: $410,000 (from 1/2/19 contributions of $1,000, approx. investment gain of $9,000)
March 6, 2019: $425,000 (from 1/2/19 contributions of $2,000, approx. investment gain of $23,000)
June 4, 2019: $436,000 (from 1/2/19 contributions of $10,000, approx. investment gain of $26,000)
August 1, 2019: $438,000 (from 1/2/19 contributions of $14,000, approx. investment gain of $24,000)

Pat has continued to contribute to the account, and investments caused a surge in the Spring, but there have been some losses in investments in July.  Now consider the different resulting distribution of funds on August 1, 2019 depending on which date of division is chosen:

Date of Valuation Including Investment Changes Excluding Investment Changes
Pat Retains Chris Receives Pat Retains Chris Receives
Date of Agreement (January 2, 2019) $226,000 $212,000 $238,000 $200,000
Date of Hearing (February 4, 2019) $225,500 $212,500 $233,000 $205,000
Judgment of Divorce Nisi (March 6, 2019) $226,000 $213,000 $225,500 $212,500
Judgment of Divorce Absolute (June 4, 2019) $221,000 $217,000 $220,000 $218,000
Date of Transfer (August 1, 2019) $219,000 $219,000 $219,000 $219,000


*For demonstration purposes I've used round numbers, but there would be some additional differences due to the investment gains or losses on the contributions made between January 1, 2019 and August 1, 2019, and that would change these figures slightly as well.

In this example, Chris receives more of the account if all the contributions are included (a later date of distribution), and in most cases a greater resulting amount if investment gains are included as well (except when using June 4, 2019 because of the dip in investment values in July).  A later date of valuation is obviously better for Chris, but is it fair?

Pat may not feel it is fair to share the contributions after a certain time period, and the risk only increases to Pat if the QDRO process is delayed for any reason and the transfer date becomes later than August 1, 2019.  What is fair is always subjective, and one of the benefits of a set valuation date (regardless of which date) is that it gets ride of any motivation by Chris to delay the QDRO process.  

When sharing investment gains, Pat and Chris share the same risk and benefit of an increasing or decreasing market and for these reasons most divorcing couples choose to share the investment gains and losses, and to set as specific date of valuation.  While there may be reasons in some cases to vary from what is typical, it is important that everyone  understand these risks and benefits so they can make an informed decision.  

As QDRO preparation experts and consultants the staff at Gray Jay Endeavors, LLC wants their customers to provide clear direction for the drafting of the QDRO, preferably in their divorce agreement itself, so there is no chance for later disagreement if the market changes or the QDRO is delayed due to unforeseen circumstances. Many experts, like Gray Jay, will also assist in reviewing or drafting Agreement provisions related to retirement to ensure that all these issues are addressed.

Guest Post from Gray Jay Endeavors, LLC







Thursday, July 18, 2019

It's time for less BUTs in mediation

Use "and" instead of "but".  It's a simple change that in conversation and writing can mean a world of difference.  That difference is inherent in how we hear and read the word "but". 

"But" has a negating connotation, implying that everything that came before it isn't true.

I think this is a valuable lesson, but it's not revolutionary.  
I think this is a valuable lesson, and it's not revolutionary.

Which one of those sentences gives you the impression I think both things are true (which I in fact do believe)?  Obviously the "and" changes the way we read that sentence.  In fact, you only have to search google for the phrase "and instead of but" to see that many people have shared this idea before me.  It's not revolutionary, and it remains a valuable lesson, especially for mediators and negotiators.

Frankie, a contributor on Medium, highlighted that the importance of making this change is rooted in the fact that two things can be true at once, even when sometimes those things seem at odds.  Imagine how powerful this idea of dialectic truths can be in mediation:

I love you but I don't want to be married anymore.
I love you and I don't want to be married anymore.

The "and" makes the "I love you" seem genuine.  It's another thing that's true despite the second truth.  Now imagine how different these two sentences might be received in a divorce mediation.  Just knowing the difference could significantly change the tone of a conversation.

As mediators we are often modeling good communication for our clients, and this is another opportunity to do that.  In addition, it's often important to validate our clients concerns as part of effective active listening.  If we, as mediators, acknowledge a concern, and redirect with the word "but" we are potentially signalling to that client that we don't think that concern is important:

I hear that you have concerns about being equal parents, but 
I think it might help if we discuss the specifics of the parenting schedule.

I hear that you have concerns about being equal parents, and 
I think it might help if we discuss the specifics of the parenting schedule.

The first option implies that the mediator is trying to change the subject, while the second option, with only the one word difference, suggests that the mediator believes the specifics could help address the parents concern.  The mediator is redirecting the client to a more specific topic that might help them make progress, and at the same time validating the concern rather than dismissing it.  It can both be true that the client has parenting concerns, and that addressing the schedule could alleviate some of those concerns.

This has become one of the tips & tricks we share in mediation training and we encourage you to try it out in your personal and professional life.

If you're interested in learning more about upcoming mediation trainings you can visit Divorce Mediation Training Associates' information or registration page.

Thank you to Amy Martell of Whole Family Law & Mediation who first brought this issue to my attention at a collaborative law training.

If you're interested in learning more about upcoming collaborative law trainings you can visit Massachusetts Collaborative Law Council's Intro Training information and registration page.



Wednesday, July 3, 2019

Innovation in the Family Court: Real & Imagined

Some Judges have long recognized the need for what Frank Sander called the "multi-door courthouse," a place where people in a dispute can find multiple ways of resolving that dispute, not just litigation. In a concurring opinion in the Cooper v. Keto case, Massachusetts Appeals Justice Brown pointed out that "Litigation should be the last option, not the first."  He also quoted a retired Judge's article in the Boston Bar Journal lamenting whether lawyers were adequately addressing this issue:
"'technical competence' of lawyers to litigate is greater today than ever, but lawyers often 'fail to consider whether doing it is useful'."
The good news is that many courts, especially family courts, are starting to recognize this need, and there are a more and more pilot programs taking place that provide opportunities for families to find alternative ways to resolve their conflict. 

In Massachusetts, there is a program in the Hampshire County Probate and Family Court called the Family Resolutions Specialty Court which is offering families another way. The FRSC is a voluntary option presented to families with custody or parenting disputes, and is very similar to the collaborative law model (with some notable differences).   The family is provided a mediator and an attorney for the child or children, and a Judge is available to meet with the parties in informal settlement conferences.  More details about the program are available on the Mass.gov site and in these two articles reviewing the FRSC program:

Boston Bar Journal: The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire County

IAALS Blog: Massachusetts Family Resolutions Specialty Court: A New Alternative

The IAALS also reported earlier this year on some important steps taken by the Conference of Chief Justices to show their commitment to a less adversarial family court:

IAALS Blog: The Conference of Chief Justices Adopts Guidelines to Make Family Courts Work for the Families They Serve

The Guidelines rely heavily on a report from the Family Justice Initiative which showed that the family court system was not only inefficient but possibly discouraged parties from reaching uncontested settlements.  The findings included:

  • "72 percent of cases reviewed involved at least one self-represented party;
  • Most cases are uncontested, but contested and uncontested cases took about the same amount of time regardless;
  • Many current data systems do not provide judges, lawyers, mediators, and others with enough information to allow them to move cases through the system in an efficient way to help families get the resolution they need."

Improving case management systems, especially for uncontested matters, will obviously help families reduce stress and cost, and the courts can and should go even further, encouraging the use of mediation and collaborative solutions when possible.  The Principles for Family Justice Reform focus on joint problem-solving, triage, training and improving access to information and data.  The experts who are often needed in a divorce are people with mental health, financial, or child-related expertise, rather than legal expertise.

Family conflict should not be the purview of lawyers alone and it is time to question whether lawyers should even be the gatekeepers when family conflict arises. Indulge me for a minute and in the spirit of John Lennon:

Imagine, if a divorcing spouse, a person typically in pain and under emotional stress, was met at the courthouse first by someone trained in triaging their needs and in empathetic conflict resolution, instead of an administrative clerk;

Imagine, if the website for the court encouraged mediation first, and described the benefits;

Imagine, if uncontested divorces could be finalized without a Judge's signature (like marriage certificates);

Imagine, if every dispute involving children included the opportunity to involve an expert in child development;

Imagine, if every dispute involving complicated financial issues included the opportunity to work with neutral financial experts;

Imagine, if we started considering the court as a place people go to make peace instead of a place they go to make war.

Now you may say that I'm a dreamer, but I'm not the only one. 

Tuesday, July 2, 2019

Should Alimony Recipients be Able to Save for Retirement?

Bulletin Board - Should Alimony Recipients be Able to Save for Retirement?
In Massachusetts, Alimony is defined by the Alimony Reform Act of 2011 (the "Act").  We've previously explored how the Act outlines "need" and the case law that has developed around that definition: Alimony: You Get what You Need!  The question we're exploring today, is whether or not this definition of need includes saving for the future, or retirement.

Chapter 208 Section 53 of the Massachusetts General Laws states that:
"(a) In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material." (emphasis added)
The language in bold above does seem to give some potential argument that the ability to save (if that was common in the marriage) is relevant to the question of what the recipient "needs."  Oftentimes the payor will continue to have the ability to save for retirement, so arguably having alimony payments low enough that a recipient cannot save creates a disparity.  The Young v. Young decision, explored in this post, arguably limits future saving if it wasn't part of the marital lifestyle (limiting inclusion of future increases in a payor's income), but still doesn't address this issue directly.

There is one pre-Act case (2004) that addresses this issue, and the question that remains is whether or not that case is still good law, given the new definition in the Act.  Cooper v. Cooper was an an alimony and child support mod where the appeals court felt the lower court went to far with the alimony increase stating:
"To the extent that the amount of the award relies on the judge's finding that it was made in part to 'ensur[e] future continuity of the former marital station,' it also was improper. An alimony award that exceeds current need, so as to permit accumulation of assets or savings for the future, may be appropriate only when that award is made pursuant to G. L. c. 208, § 34. 'Under G. L. c. 208, § 34, alimony and property division are interrelated. . . . Need is a major element, but obviously not the only one, in an equitable distribution of property under § 34.' Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904 (1992)." 
While Cooper is a pre-act case, it does give a clue as to other ways to address retirement needs, besides alimony, by referencing the property division statute.  Arguably if the alimony payor has a greater ability to save for retirement than the alimony recipient may need to have a greater proportion of the existing retirement in the division of property to account for this disparity.  Of course, this is only an option when there are sufficient assets to divide at the time of the divorce, and the goal of the court is not to create financial equality between the parties indefinitely (again as demonstrated by the Young case), but rather to equitably divide the property at the time of the divorce, whatever that means.

So ultimately, the answer to this question is outstanding, and we may eventually receive additional guidance if someone takes the issue up on appeal.  In the mean-time, divorcing spouses can continue to be creative about how they argue about, and resolve, disputes relating to the equitable way to account for their needs today and in the future.  Mediation and Collaborative Law encourage spouses to expand the conversation in these types of ways and address short and long term goals, to resolve conflicts today and also prevent them from resurfacing in the future.

For more information about AlimonyMediation, and Collaborative Law visit Skylarklaw.com.

For more information about retirement division visit GrayJayEndeavors.com.

Monday, April 22, 2019

Massachusetts Child Support Guidelines on your iPhone

In 2017 and 2018 the Massachusetts Child Support Guidelines were updated twice, resulting in a new worksheet calculation that encompasses numerous changes from the prior iteration (2013).  Here are some useful resources explaining the changes:

8 Changes in the 2017 Massachusetts Child Support Guidelines

2018 Child Support Guidelines Update: Fixing the Table B Problem

2018 Child Support Guidelines Update: Fixing the Double Counting of Health Care and Child Care Credits

While understanding how the calculation works is important, sometimes all we need is the ability to run a number of sample calculations quickly.  For that purpose you can use the court's pdf worksheet available here, or one of these useful tools:





https://itunes.apple.com/us/app/ma-child-support-calculator/id346060258?mt=8


this calculator is also available in a suite of calculators called:





https://itunes.apple.com/us/app/ma-divorce-calculators/id891946217

and we also have a free online calculator that works in any web-browser:


https://www.skylarklaw.com/family-law/divorce/massachusetts-child-support-calculator/

Friday, April 12, 2019

Social Security Benefits in Divorce

In Divorce nothing is as simple as it may seem at first. This is just one of the reasons it's vitally important to obtain good financial and legal advice during the divorce process. Social Security is an example of how something that seems simple can actually be a very complicated discussion in divorce. Consider the question:

Can Social Security benefits be transferred or divided as part of a divorce?

The simple answer is no.

The more complicated answer is that while the benefit itself cannot be transferred, Social Security does provide for benefits for divorced spouses in certain circumstances, and many courts have also ruled that the amount of a Social Security benefit can affect other determinations. For example, in Massachusetts the case of Mahoney v. Mahoney, held that the court could consider the Social Security benefit owed to the husband in that case when determining the equitable division of the wife's retirement benefit.

In Mahoney, the trial Judge awarded the wife more of her retirement benefit taking the husband's social security benefit into account.  The Supreme Judicial Court affirmed this decision confirming that the court couldn't divide it as a marital asset, but under the broad discretion for "equitable" division of assets in Massachusetts, the court could properly consider that income stream.  It would follow that the court could also consider social security benefits in determining alimony, however under the Alimony Reform Act the court must deviate to extend alimony beyond full social security retirement age, so this is less likely than an unequal division of assets to account for differences in Social Security benefits.

Of course, determining the amount of a social security benefit is not always easy.  For additional information on that issue review the following resources:

Obtain your Social Security Statement

Review the Social Security Benefits available for Divorced Spouses

Review potential reductions to Social Security due to Pension Benefits

In divorce mediation and collaborative divorces, we encourage clients to not make any decisions until they are fully informed.  When determining an appropriate division of retirement accounts, especially pensions, it is important to make sure you also have any relevant information about your potential social security benefits so they can be part of any discussions about equitable division.
Related Posts Plugin for WordPress, Blogger...