Guest Post from Jennifer Hawthorne* When contemplating a divorce, one of the first questions most parties to a divorce ask themselves is “how will I support myself during and after the divorce?” Determining how much support can or should be paid by the higher income earner to the lower income earner can often be one of the most contentious issues in a divorce. Both parties often feel like they just will not have enough income to support themselves and their children. This uncertainty can be unsettling.  In many cases trying to find the right balance of support can lead the parties to do a tax analysis that compares the benefits of agreeing to a child support order, an alimony order, or some combination of both, sometimes called unallocated (family) support.  Often times the tax analysis will show that moving away from child support even though there are unemancipated children will leave more money in the hands of both parties. This happens because alimony and unalloc...

The more I write and speak about mediation, the more opportunities I have to hear from people who still have questions about how it works.  Recently one attorney on LinkedIn asked me about whether there are rules for financial disclosure in mediation like there are in court .  This is, in fact, a common complaint about mediation; that many mediators don't require the parties to share information that the same parties would have to share in court.  Specifically in Massachusetts there is a rule, called Probate and Family Court Supplemental Rule 410, which requires the sharing of certain documentation in a divorce case within the first forty-five days of the case. Should mediators be enforcing this rule and requiring financial disclosures in a non-litigated case? I know mediators who would answer this question yes and others who would answer no.  My answer is no, mediators should not be enforcing financial disclosure (and I explain why below).  That answer trou...

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...

The Alimony Reform Act  has led many to seek changes to their alimony orders and agreements.  The change from "lifetime alimony" was a driving force behind the Act, after all.  However, that doesn't mean that everyone is entitled to a change under the Act. In Demarco v. Demarco , the Appeals Court looks at a case where two parties reached an Agreement based on an assumption that the husband was entitled to a change under the Act.  That assumption was incorrect according to the Supreme Judicial Court's ruling in Chin v. Merriot (and its two companion cases, Rodman & Doktor).   The recipient spouse in Demarco believed that this mistake required her case to be reopened, and the trial judge agreed.  Below is a recap of the timeline in this case: May, 2010  - The Demarco's get divorced, with an agreement that includes an alimony payment ( merged order ). Mar, 2012 - The Alimony Reform Act takes effect, and it includes a provision that alimony p...

The Alimony Reform Act  has led many to seek changes to their alimony orders and agreements.  The change from "lifetime alimony" was a driving force behind the Act, after all.  However, that doesn't mean that everyone is entitled to a change under the Act. In Demarco v. Demarco , the Appeals Court looks at a case where two parties reached an Agreement based on an assumption that the husband was entitled to a change under the Act.  That assumption was incorrect according to the Supreme Judicial Court's ruling in Chin v. Merriot (and its two companion cases, Rodman & Doktor).   The recipient spouse in Demarco believed that this mistake required her case to be reopened, and the trial judge agreed.  Below is a recap of the timeline in this case: May, 2010  - The Demarco's get divorced, with an agreement that includes an alimony payment ( merged order ). Mar, 2012 - The Alimony Reform Act takes effect, and it includes a provision that alimony ...

The Massachusetts Appeals Court recently provided an overview of the two-part test for deciding if a custodial parent can move out of state with their child  in  Rosenwasser v. Rosenwasser .   The father in Rosenwasser requested the court's permission to move to Florida with the parties' minor child.  The trial court denied his request after applying the two-part test from the Yannas case .  However, the appeals court disagreed with how the trial court applied the test and focused specifically on a change the mother made to her parenting only recently. The appeals court agreed with the trial court that the father met the first prong of the Yannas test because there was a "real advantage" to him moving to Florida, namely decreased expenses and family support.  In addition, the request to move did not appear to be motivated by a desire to deprive the mother of time with the child. The second part of the Yannas test requires the court to determine if the...

Post by Beth Aarons * Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement.   Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road. Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan.  These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering...