WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


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.

Monday, April 1, 2019

How long is a marriage? Balistreri v. Balistreri

How long is a marriage? It’s a seemingly straightforward question, but divorce and alimony laws over the years, and the complexities created by overuse of the courts, have complicated the issue. The Balistreri case, which came down from the Massachusetts Appeals Court on June 29, 2018, clarifies the question somewhat.

The alimony statute defines the length of a marriage as “the number of months from the date of the legal marriage to the date of service of a complaint or petition for divorce or separate support.” M.G.L. c. 208 §48. Balistreri addresses situations where there may be more than one complaint for divorce or separate support floating around. This may be because of hastiness to go to court before other options have been explored, which then lead to a resolution of an issue, so that the complaint is abandoned and does not result in a judgment. It may also be because parties may first file a complaint for separate support before following through with a complaint for divorce.

The Balistreri case provides that, where there are multiple such pre-divorce complaints, the length of the marriage is determined by the service date on one of the complaints which resulted in a judgment for payment of alimony. The trial court is given discretion to decide which among the qualifying complaints determines the length of the marriage.

A complaint that was filed but that did not result in any judgment (because, for example, it was abandoned) does not qualify for consideration. This avoids a “nonsensical” situation where the marriage is considered ended where, for example, one party files for divorce, and then the parties later reconcile and decide to remain together for many more years. A complaint that results in a judgment but not a judgment that provides for payment of alimony also does not qualify for consideration. Finally, complaints that are filed but are not timely or properly served do not qualify either.

What does this mean if you are considering a divorce? 

If you have filed a complaint in order to put an end-date on the length of the marriage because you are considering a divorce, this does not mean the end-date for your marriage is set in stone. If you do abandon your complaint for some reason, or fail to follow through with participating in the process, the service-date of the summons on that obsolete complaint will no longer apply. This means practically speaking that, if you do intend to file a contested divorce, you should be sure to have consulted with an attorney and be sure you understand how to follow through on the requirements of the court process, for example attending and appropriately preparing for all your court dates, and complying with mandatory discovery.

Bear in mind that even if you intend to negotiate a settlement of your divorce, you can still file a complaint for divorce to set an end-date for the marriage, and then convert the complaint for divorce into a joint petition for divorce when you are ready to present your agreement to the court.

The larger piece of practical advice we can draw from this situation is that the trigger-happy approach to litigation, which seeks to run to court and file a new complaint whenever there is a dispute, really is not the most cost-effective nor efficient way to handle family law disputes. The potential alimony-payor will not minimize their alimony obligations if they are not willing to systematically follow through with each complaint filed, or if there is not enough substance within each complaint to make it worthwhile or necessary to see it through to a final judgment.  If potential payor and recipient can agree on the length of the marriage, through mediation or collaborative negotiation, then only a joint petition and agreement would be necessary, avoiding any risk in discretion of the court.

 by Valerie Qian - former associate to Skylark Law & Mediation, PC

Friday, March 15, 2019

Alimony and the Dis-Incentive to Earn More Income

While the definition and formula for alimony varies widely by jurisdiction, the payor and recipient's respective incomes are the key information in determining need and ability pay.  So it's no surprise that a key question in alimony disputes is whether the potential payor or potential recipient can earn more income than they currently are earning (or reporting).  In addition, sometimes spouses are concerned that the typical formulas used to calculate alimony will disincentive the payor or recipient from earning additional income because the additional income would then change the alimony amount.

This was the subject of a recent question on the Massachusetts Bar Association's My Bar Access online forum.  The question focused on how to address this incentive in a case where the recipient (wife) was self-employed and the payor (husband) believed that the recipient was underemployed and could earn more.  The mediator was asking for ideas on how to build incentives into the agreement for the alimony recipient to work/earn more.

Here was my response:

It's an interesting dilemma.  Technically if you use a formula for recalculation on a regular basis that takes the difference in their income, then there is always an incentive to earn more individually but the incentive is reduced for both payor and recipient to earn more the greater the percentage of alimony.  So there are a couple formulaic ways to increase incentives:

Option 1. Carve out a specific increase in income that would result in no change in alimony.  This doesn't help the payor but could push the recipient to increase their independence and could eventually lead to a greater increase that would then kick in a reduction.  The payor could have a similar carve-out as a way of balancing the equities.

Option 2.  Have step-downs in the percentage of alimony for greater income by recipient.  So instead of the typical formula (in Massachusetts) A% x (P - R) where A is the alimony percentage, P is the payor's income and R is the recipient's income, you could do something more like (A% x P) - (B% - R), where B is a lower percentage than A.  This increases the incentive for Recipient to increase income by having their increase impact the total alimony less, while still providing some reduction to the Payor.  B could also change, like a regressive tax bracket, to encourage additional increases an income, though there would have to be some limit or Payor and Recipient could have the same income and there would still be a resulting payment under this formula.

These are just a few ideas, all based on the implication that financial incentives will be effective.  It may also be worth discussing with the clients what their motivations for work are, and how strongly they consider financial incentives.  In other words, many people don't act based on financial incentives alone and often we get focused on formulas and the incentives they create while ignoring other more impactful factors (e.g. fulfillment from employment, enjoyment of work v. other activities, satisfaction with a certain level of income, etc.).

Also, people often misunderstand financial formulas to the point that the incentives are misunderstood.  I can't tell you how many times people have explained how they don't want to have support push them into a higher tax bracket, misunderstanding that our progressive income tax scheme only applies a tax bracket to the income in that bracket and doesn't change the lower brackets when you go over a certain income.  So financial incentives are only useful if they are understood and other motivations don't outweigh them.

Keeping this in mind, another way to create incentives is to create timelines by which the recipient is required to be more self-sufficient.  They could agree that additional income to recipient (up to a point) doesn't affect the formula at all for the first x number of years, giving the recipient time to find additional income sources, training, etc.  After that time, the formula could automatically reduce, or be reevaluated, or the burden of proof could be shifted by agreeing to an attribution of income to recipient at that later time, which can be rebutted by evidence to the contrary at that time.

These are just some of our ideas, please comment below if you have other ideas.
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