April Showers Brought May Flowers: How the Openshaws Prepared for Rainy Days Ahead  by Nathaniel Butzke      Just in time for the rainy season, the Massachusetts Supreme Judicial Court shed new light on what it means to "live" a certain lifestyle as a married couple and how those habits should be reflected in post-divorce alimony. The case, Openshaw v. Openshaw (2024) , revolved around a couple who, during their marriage, didn't just focus on living well but also on saving wisely. When their marriage came to an end, the question arose: should their habit of saving be considered part of their marital lifestyle for the purposes of determining the appropriate amount of alimony?      The court's answer was a resounding YES . In essence, the court argued that saving isn't just a financial strategy; it's a way of life. For the Openshaws, who enjoyed a generous annual income far exceeding their living expenses, setting money aside wasn't merely about preparin...

We encourage our clients to use non-adversarial joint problem solving to resolve conflict.  A simpler way of saying that is that we work with people to talk about and solve their problems together.  We ask our clients to stop seeing the other person as an obstacle to overcome, and rather to see them as an ally in finding a solution that can work for everyone. Consider the advantages of this approach when it comes to a financial negotiation: Just like poker players hide their cards when they play a hand, people often assume the best approach to negotiation is to hold back information to achieve the best outcome for themselves.  This analogy ignores the fact that the rules of poker are designed around having incomplete information, and using clues to gain an edge.  The rules of negotiation are often different depending on the context.  For example, in a divorce case the court in Massachusetts requires certain financial information to be automatically disc...

In 2014, we didn't know yet who would be running for president in the 2016 election, the Guardians of the Galaxy  had just arrived, Pharrell Williams was " Happy ", and the Ebola virus outbreak was reaching epidemic proportions in West Africa. Also, in 2014 we posted a 3-part article on Starting the Divorce Process , and despite how much has changed since 2014, divorce is pretty much the same.  You have a choice when getting divorced; you decide how much professional help you want, how much control you want to have over the outcome, and how much time and energy you have to devote to your divorce. What is different in 2020 is the continued growth in popularity of divorce process options that focus on family over fighting.  More professionals are trained every year in collaborative law and mediation.  Conscious uncoupling has become a buzzword for a better divorce. More and more resources are showing up to help explain the options in divorce in more understand...

UPDATE: The MA SJC weighed in on this issue with a definitive "yes": in  Openshaw v. Openshaw - Massachusetts SJC Rules that when savings was part of the marital lifestyle then a judge may consider that history in determining a recipient's "need" for alimony in divorce: The SJC ruled that when the court finds that "ongoing, regular saving was part of the couple's standard of living during the long-term marriage and that the parties' combined postdissolution income is adequate to allow both spouses to maintain the standard of living enjoyed during the marriage" then a "judge may account for a divorcing  couple's custom of making regular contributions to their savings plans in determining, under G. L. c. 208, § 53 (alimony statute or § 53),  the amount of alimony needed to maintain the marital lifestyle." Original Post: In Massachusetts, Alimony is defined by the Alimony Reform Act of 2011 (the "Act").  We've previ...

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 awarde...

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 div...

Improving Negotiations using Collaborative Values: A Checklist of Tools by Beth Aarons, JD, MSW , Jody Comins, MSW , and Justin Kelsey, JD On April 27, 2018, we presented to the Massachusetts Collaborative Law Council ’s annual forum at a workshop entitled: Using Collaborative Values to Shift Parties from Litigation to Cooperation . The theme of this workshop was to take collaborative values and discuss how we can use these tools in all of our cases: negotiated, litigated, or mediated. This is not a unique idea. David Hoffman has spoken and written about “cooperative negotiation” and Lainey Feingold has written and practiced “structured negotiation,” both of which share many overlapping tools that are used in the official Collaborative Law Process, with slight exceptions. In fact, we would argue that these negotiation processes have more in common with Collaborative Law than they do with litigation or more traditional attorney negotiation. This leads us to the question t...

There are three typical ways a divorce process can end: Reconciliation, Judgment, or Settlement.  Very few cases reconcile once a divorce process is started, and very few cases go all the way to Judgment.  In other words, most divorce cases settle, either before going to court, or at some time during the court process.  But settlement takes lots of different forms , and those different forms can have a significant impact on whether people feel good about their settlement or not. Many clients and potential clients have asked me if there is any statistical research on outcomes for different processes, or even whether there is any data on whether a particular process is considered more "successful" than other options.  Unfortunately, I am not aware of any large scale study comparing Mediation, Collaborative Law, Arbitration, Self-Help Negotiation and Litigation, or even anything close to comprehensive.  There is some research comparing mediation and litigation...

Divorcing spouses that choose outside-of-court dispute resolution, like mediation or collaborative law , often list privacy as one of their primary reasons for choosing to avoid court.  This may seem obvious when thinking about the publicity around celebrity divorces  but anyone having their dirty laundry aired publicly can be damaged both emotionally and financially.  Below are some precautions that practitioners and clients can take to protect private information in divorces, even if they're not a celebrity. 1.  Protect Personal Identifying Data:  The court process in many states is public (in Massachusetts this includes hearings, most court documents, and trials), however there are some limitations on what information is public.  Certain documents, such as the Financial Statements, are typically impounded, meaning the public does not have access to those documents and they are only available to court personnel, parties and their counsel. ...

Very few divorce cases actually go to trial.  Even cases that start out with both parties intending to litigate, or "have their day in court", usually settle.  I've heard many litigators argue that since most of their cases settle anyway, the court process is better than mediation because it offers more protection to the participants.  However, there is a serious problem with settlements that happen during the litigation process:  they are rushed and people often feel pressured into signing at the last minute. Despite the fact that the court process of a divorce typically takes longer than a mediation, the court process has a lot of what I call "hurry up and wait."  The litigation process typically involves long periods of waiting for deadlines to pass and for the next court hearing and then a flurry of activity right before the court hearing is scheduled.   Then, if that flurry of activity doesn't result in a settlement you're back to waiting. For e...

Guest Post by Attorney & Arbitrator Anthony C. Adamopoulos * A recent decision of our Appeals Court, Gravlin v. Gravlin , is good news for those facing divorce. For collaborative divorce attorneys and divorce mediators, the decision confirms that arbitration is the viable alternative to court litigation for resolving a single issue or even taking the place of a full court trial. In Gravlin , the Appeals Court acknowledged: “… arbitration has long been recognized as a valid means of resolving disputes between divorcing parties.”   This blog's primary author, attorney/mediator Justin Kelsey , has often praised the value of using alternatives to divorce litigation; with Gravlin , the Appeals Court has stamped an imprimatur of sorts on divorce arbitration. While arbitration is available to replace a public court trial, I encourage the use of collaborative divorce or mediation to “work out” divorce issues, as discussed in previous posts on this blog . However, if col...

I recently read a post entitled "Why 'Fair' is the F-Word in Divorce Negotiations"  by Shawn Weber, which posits that fairness, as a subjective concept, bogs people down and can keep them from reaching agreements.  I agree with Mr. Weber that the focus of divorce negotiation should be "on making a decision that can end the conflict so that a person can move on, which in turn will bring peace."   However, I also believe that sometimes understanding the concept of "what is fair" to a person is integral to a couple finding peace. Mr. Weber rightly points out that asking the question "what is fair" will often result in two answers that do not intersect.  Consider, for example, a hypothetical couple fighting over whether the children are ready to meet the mother's new boyfriend.  The mother may think it's unfair for her not to have the choice of when is the right time to make that introduction, and the father may think it's unfai...

Collaborative Law is a practice that requires finding the right balance in many different ways.  The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court.  Clients and their counsel must find a balance between individual advocacy and shared goals in order to reach solutions.  Finding this balance can sometimes be difficult and challenging, but also rewarding. Kayaking is a great metaphor for collaborative practice, because it also requires balance and work in order to have a rewarding experience.  On Thursday, July 23, 2014 some members of the Massachusetts Collaborative Law Council decided to bring the metaphor to life by joining each other for a summer afternoon of kayaking at Lake Cochituate in Natick.  Here are some pictures from the event: If you have a dispute, ask yourself if you want professionals handling your case that can't get along? ...

At a recent event celebrating the 15th Anniversary of the Massachusetts Collaborative Law Council , one of it's founders, Rita Pollak , spoke about her reasons for joining the Collaborative Law movement.  Among those reasons was a recognition that the practice of family law in the courts was becoming less civil, and more hostile.  This is a sentiment that I have heard echoed by many, and have experienced myself.   Too many of the lawyers who handle family law cases fail to understand the importance of civility, and act without thinking about the true impact of their actions.  In fact, I believe many lawyers think they are acting in their client's best interest when in fact they are modeling bad behavior and bad habits which will harm their clients and their client's family for years after their case is over. The Massachusetts Bar Association approved Civility Guidelines for Family Law Attorneys in 2006.  These guidelines should be required reading for all fam...

Currently, four of the attorneys at Skylark Law & Mediation are trained in Collaborative Law, an out-of-court dispute resolution process.  The Collaborative Law process may be used to resolve conflict in all types of matters, including family, business, and probate disputes.  The Collaborative Law training is an excellent opportunity to add valuable skills to your conflict resolution toolbox. Justin Kelsey , the owner of Skylark Law & Mediation, PC, will be one of the trainers at the upcoming 2015 Introductory Collaborative Training presented by the Massachusetts Collaborative Law Council. This training meets the standards set forth by the International Academy of Collaborative Professionals (“IACP”), and those completing this training are eligible for membership in the Massachusetts Collaborative Law Council and the IACP.  More importantly, by participating in this training you would immediately become part of a growing, cutting-edge international ...

There is a design principle in engineering that was made popular by the U.S. Navy in the sixties called "Keep It Simple, Stupid"  or KISS for short.  The KISS principle is about valuing simplicity in design in order to make things less likely to break and easier to fix when they do break.  As a fan of this principle, I was very impressed with Rackham Karlsson's recent blog post:  Collaborative Divorce in the Simplest Terms Possible  in which he does just that, explains Collaborative Divorce as simply as possible. Rackham's post has inspired me to try and explain the work I do in the simplest terms possible using the KISS principle and the Up-Goer Five Text Editor , a site that forces you to explain an idea using only the 1000 most used words in the English language. Here is a typical explanation of what I do: In my work I encourage clients to settle disputes outside of court, whether through collaborative law, mediation, or other other out-of-court pr...

There are many reasons that there are currently fewer Collaborative cases than there are mediation and litigation cases.  Just to name a few of the challenges: the process is newer and less well known to the general public; there is still confusion about the cost and benefits of the process; and there aren't as many practitioners trained in the process as there are in mediation (and no additional training is "required" to go to court).  Collaborative Law, like mediation, requires that both parties choose the process.  If one party wants to go to court then the other essentially has no choice.   There are many seminars on informing the reluctant opponent, and about educating other professionals regarding Collaborative Law and hopefully these strategies will help more cases resolve amicably. However, there will always be some cases where one side chooses to hire an attorney who believes litigation is the best route, or at the very least is not willing to be disqual...