Post by Julie Tolek * Mediation is often referred to as “facilitated negotiation” or a form of voluntary dispute or conflict resolution. Using these terms to describe mediation automatically brings to mind scenarios where couples are fighting over a problem or situation that has already happened. But what if we turned that process around and reversed it? What if we mediated a plan before something bad happens? Using mediation as a planning tool to help facilitate negotiation and communication before something bad happens can be equally as valuable (and sometimes even more so) than applying mediation to solve a current problem. After something bad happens, emotions are usually raging, parties are sensitive, often angry, and sometimes even vindictive. If you have ever tried to solve a problem (or even have a conversation) with someone who is in a bad mood or having a bad day, you already know it’s like talking to a wall. Now imagine if you try to plan for potential issues befo...

Taking the course is a prerequisite for getting divorced in MA. As of May 1st, 2016 Massachusetts has announced and ordered new changes to the Parenting Education programs for all divorce cases that involve minor children ( Standing Order 2-16 ). The court  has ordered that all parties in a divorce action must register with an approved program within thirty days of service of a Complaint for Divorce and prior to the hearing on a Joint Petition for Divorce. ( a list of the approved programs can be found here ) Once registered parties must file the " Affidavit Confirming Registration at Parent Education Program ."  This is a new form and timeline, but the programs themselves are not new. This is not a program that teaches people how to parent their children, but rather a program designed to help divorcing parents understand what the challenges their children will face because of the divorce.  It is ideal that the program be taken as soon after the parties decide t...

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...

Guest Post Series:  Attorney Nicole K. Levy  of  Stevenson, Lynch & Owens  Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts. There are few  family law  issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike  physical custody , legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received? See how we addressed each Assumption: Assumption 1 – Access to School & Medical Records Assumption 2 – Consent to Medical Treatment Assumption 3 – The Shared Custody “Veto Power” Assumption 4 – Presumption of Shared Legal Custody What do Massachusetts Appellate Court Decisi...

In a divorce, the court has the ability to order the division of retirement accounts, as a one-time non-taxable event, transferring a portion of the account from one spouse to the other. Whether or not all or part of a retirement account is divided depends on the rules of that jurisdiction and the facts of each case.  In this article we're not dealing with that determination but assuming there has been an agreement or order to divide an account.  Now what? How the account is divided, and whether a QDRO or some other specialized order is required, depends on the type of account.  Regardless of the type of account, however, there are five basic pieces of information that a Plan Administrator or QDRO drafter will need in order to properly divide the account.  When drafting a Divorce Agreement or proposed Judgment it is best practice to include these five elements: Identify the Plan Information Clearly  - It may seem obvious, but the Agreement or Judgment m...

In response to our recent article,  I'm in Mediation, do I need a Lawyer too? , mediator  Stephen G. Anderson asked on twitter: We though this was a great question, so here you go Stephen: I've hired a Lawyer, do I need a Mediator too? Even though many mediators are lawyers, mediators perform a very different service than lawyers.  One of the first things I tell my mediation clients is that, although I have a base of legal knowledge to draw from when assisting them, I am not acting as their lawyer when I am mediating.  But if you already have a lawyer, would you want a mediator too?  If you want to resolve your dispute privately, with less cost, and more control, then the answer is quite simply: YES. Because the mediator role is different than the role that your lawyer serves there are numerous benefits to hiring a mediator  to work with you and your lawyers, and some risks as well.  Below is a summary of the pros and cons: Benefit...

Guest Post Series:  Attorney Nicole K. Levy  of  Stevenson, Lynch & Owens  Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts. There are few  family law  issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike  physical custody , legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received? Assumption 4. Shared Legal Custody is Presumptive  Finally, an assumption about legal custody in Massachusetts that is supported by some law! The Massachusetts divorce statute does indeed make shared legal custody for married parents presumptive at the temporary order stage: [U]ntil...