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Divorce Mediation Blog

Online Dispute Resolution: Ready or Not, Its Already Here

Wednesday, July 19, 2017

Recently, we attended the Massachusetts Bar Association’s inaugural Dispute Resolution Section symposium, and the annual AFCC meeting, each in Boston. Both programs featured extended discussions of mediation involving a “fourth party”, as in, the two parties, the mediator and technology.

We expected the focus to be running divorce mediations with an absent party or two, attending virtually by Skype or FaceTime, or even the good old-fashioned speaker phone. Most of us have done a bit of this and addressed the limitations imposed by the lack of eye-to-eye contact and the sense that the person on the screen or behind the phone is actually checking his email, or her text chain.

More profound was an AFCC speaker’s demonstration of a Dutch program wherein parties log on to a website that guides divorcing parties through a progression of multiple choice questions that range from the prosaic (biographical) to the attitudinal (“you image your child living…”) to the transactional (“you propose to…”). The notion is that mediation does not even have to be synchronous. As one speaker put it, in essence: “the client can sit in bed with a glass of cabernet and ponder a response…and we don’t often have a chance to mediate with cab.”

The upshot of the Dutch notion of online mediation for family law is that the mediator may just be reduced to the “chat” person you get when you go on a retailer’s website: “may we help you select a model?”. The Dutch model will even assign a mediator to “run” the process, taking our theoretical descriptor of “facilitative” to a new low, or new high, depending on your perspective.

We get how for many divorcing couples, whose issues are fairly rote and shaped by state-mandated formulas, much resolution can emerge from hi-tech questionnaires. But we, who spend our days doing the intensely personal work of educating, observing, empathizing, encouraging and reasoning with emotionally fraught parents and spouses, have a hard time seeing how the application of this kind of dispute resolution will translate to the population whom we generally serve.

Another AFCC speaker pointed out that we who pride ourselves on the personal attention we devote, are already engaged in Online Dispute Resolution when we email, text, spreadsheet and utilize cloud based services to communicate with and assist our clients. So, maybe we have the best of both worlds already.

 

The Goose, the Gander and the Alimony Reform Act

Wednesday, July 19, 2017

Five years and many appellate cases later, the Alimony Reform Act (eff. March 1, 2012) (“ARA”) now has some meat on its bones. The more we work with it, however, more scenarios emerge that we had not previously considered; and we wonder if the drafters did either. One aspect we have been pondering is how critical elements of the statute address the scenario where former spouses “trade places” after divorce. In other words, the parties’ earnings change inversely, sufficiently to make the initial alimony payor a putative payee.

In an era of predominantly two earner (former) households, changes of relative fortunes are not only possible, but they are, in fact, easy to imagine. Consider, for example, any pair of business people or professionals: their levels of success will vary over time, under any circumstances. With the ARA’s income comparison model - the presumed metric for general term alimony under M. G. L., ch. 208, §53(b) generally not exceeding 30-35% of the difference in the spouses’ respective earnings - the parties’ income capacities may not only fluctuate, but at some point, converge and intersect.

For example, at divorce, Leslie earns $90,000 per year while Morgan earns $60,000, it is predictable that Leslie would pay about $10,000 of alimony. (Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) would deem it “reasonable and legal”). Yet, some years later, Morgan could easily be earning $120,000 while Leslie treads water at $90,000. Thus, the alimony shoe shifts feet, the law then presuming that Morgan should pay the same $10,000.

Assume now that Morgan and Leslie were married for 15 years. Under M.G.L., ch, 208, §49(b)(3), the presumed duration of alimony is 10 1/2 years. Assume further that the parties traded places 5 years after divorce. In a modification action, would Morgan’s durational limit be the “remaining” 5 1/2 years? Or, would Morgan begin her own 10 ½ year run? If they switched fortunes again (always presuming that someone has “need”), would Leslie resume her 10 ½ track at the point of first modification, or the second?

Alternatively, suppose that Leslie has paid alimony for 9.5 years, only to find herself laid off, and no longer employable at a comparable level. Or, worse yet, disabled. Morgan continues to be both healthy and happily employed. Is the newly vulnerable Leslie now limited to a year and half of alimony despite her straightened circumstances? Is she left to the vagaries of the court’s discretionary extension of the initial durational limit under M.G.L., ch. 208, § 53(e)(9)? Or, conversely, will that spouse now be eligible for period of up to 10 1/2 years as an alimony recipient himself?

Now, imagine that the parties never traded places organically. Leslie paid alimony shy of the 10 ½ year duration limit because she attained full social security retirement age after 10 years only, under M.G.L., ch. 208, §49(f). In fact, she retired. Meanwhile, the younger Morgan continues to work. Since the court cannot impute income to Leslie despite her voluntary retirement, is Morgan now on the hook for alimony? And, then, for how long? Is the duration limit 6 months, or is it re-set to reflect Morgan’s new status as payor? And since §49(f) precludes attributing income beyond full social security retirement age as a “reason to extend alimony”, does that prohibition hold if the retiree is now a recipient rather than the alimony source?

While we’re at it, what of M.G.L., ch. 53, §53(9)(g), which regulates alimony orders that commence subsequent to, or simultaneous with, child support? Where the statute limits alimony to the combined duration of alimony or child support available at the time of divorce, does that apply to one party as a payor, or to both?

As we write, we are unaware of any appellate precedent or any pending cases that will provide the answers to these questions. But rest assured, that even if they do, there are plenty of other questions in the pipeline.

 

House Bill No. 3091: An Act to Expedite Care and Custody of Minor Children Modification Proceedings

Wednesday, July 05, 2017

Representative Markey of the 9th Bristol District has filed a bill to permit modification of a judgment on child care and custody matters only, without the need to file a new action. It contains provisions for a motion filing fee, preliminary hearing and discovery. The bill provides for evidentiary hearings, but only if requested by a party or set by the court as an exercise of discretion. Temporary orders may enter, mirroring the standards of M.G.L., ch. 208, §28.

We wonder why this bill and why now? It dispenses with the due process requirement of a modification complaint and encourages expedited proceedings, but is that a good idea? Current practice requires a new modification action, but it permits temporary orders and mandates a case management conference at which the court may enter expedient procedural orders that regulate discovery. So, what is new, really?

We presume that the drafters believe that child custody matters require a faster track than other matters involving child support and alimony. But the bill begs two questions: is this really an improvement; and it is good to make custody proceedings a little bit easier to pursue? The answers, in our view are “not really” and “not necessarily.”

There is no doubt that family law proceedings generally take too long and cost too much. But cherry-picking custody cases does not cure these manifest problems, and it may just encourage heedless litigation. Research shows that the most damaging part of post-divorce custody is parental failure to agree on a parenting plan, and continued fighting. Making custody modification even a little bit easier may just encourage more custody modification litigation, which, as a phenomenon, benefits only lawyers.

If permitting judgment modifications by motion, as some states do permit, on the theory that any custody or support matter is technically a continuing matter until terminus, then it should be part of a broader reform of all family law statutes. But, singling out custody matters strikes us as symbolic at best while encouraging litigious parenting.

 



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