781.708.4445

info@levinedisputeresolution.com

Divorce Mediation Blog

Massachusetts Alimony: Watching the Pot - Part 2 A Mediator’s Perspective

Wednesday, April 17, 2013

In the last entry we reflected on divorce lawyers’ impatient wait for “clarification” of the complex Massachusetts alimony “reform” statute from the Supreme Judicial Court and Appeals Court. They hope that with appellate “guidance”, they may be better able to prepare their clients for what may happen in court in what are otherwise unclear scenarios. Ambiguity causes anxiety in lawyers and their clients alike. Given the number of cases in the appellate “pipeline” a year out, 2013 is the year when interpretive case law will begin to trickle, or perhaps, flood out of the appellate courts in downtown Boston. This flow may be edifying or confusing, consistent or scattered, but to lawyers, it is essential.

In the meantime, for facilitative divorce mediators, appellate silence is a form of opportunity. Clients frequently turn to mediators and ask: what would happen in court? Three possible answers are:

  1. I know, but I’d rather that the two of you try to figure this out for yourselves.
  2. I don’t know because the case law is confusing and inconsistent.
  3. The statute leaves it up to you to decide what makes sense for you and your family.

The first answer, while true to principles of facilitative mediation, is often frustrating for clients. It can also pose a struggle for the mediator who is trying to foster discussion rather than shut it down, especially in a way that might suggest potential bias; yet the knowledge of appellate interpretation may be important to the parties’ understanding. The second answer is negative, may discourage the spouses and undermine confidence in the knowledge of the mediator.

Answer number 3 is positive and puts the focus back on the parties themselves. Where the legislature left discretion, the parties are left to exercise it by consensus, untrammeled by the imperfect analogies of different appellate panels in other peoples’ scenarios where too few facts are known. Instead of shutting down discussion and limiting options, the clients are free to explore and agree; and so long as they find the “range of reason”, a judge should approve their work.

Take an example. The parties have a long-term marriage but an alimony payor who is close to the federally defined retirement age. The strong language of the alimony statute suggests that alimony should terminate when that age is reached, regardless of other circumstances or equities. But, the statute then provides a “deviation” opportunity: to set a different alimony termination structure for “good cause shown”. What then is good cause?

For the moment, mediators can encourage a wide open conversation on “what is good cause to you?”, free of the knowledge that hypothetical cause a, b or c may have already been ruled “in” or “out”, by one appellate court or another. When the clients can freely list all the factors that seem relevant to them, they can then move on to evaluate them, weigh them, discard them or trade them. The result is an exchange of ideas that can result in an individually tailored suit of good cause: the parties’ own, and not someone else’s or something off the rack.

Once the appellate courts begin to speak, we as mediators will be charged with the knowledge and tasked with deciding in each case what to or not to disclose of the emerging clarity or confusion that the cases bring. From that perspective, we might say “take your time”.

The viewpoint of a family law arbitrator is quite different. We will discuss that in our next entry.




Get e-mail notifications of new blog posts! Enter email address below.:



Delivered by FeedBurner

other articles


recent posts


tags

med/arb Baseball pre-ARA alimony divorce mediations divorced conciliation Massachusetts alimony divorce mediators Uniform Arbitration Act Twinkies medical benefits Divorce Massachusetts divorce mediators facilitated negotiations litigation fraud rehabilitative alimony special master Massachusetts lawyers family law mediation divorce lawyers mediations Levine Dispute Resolution Center LLC Levine Dispute Resolutions General term alimony mediation lawyer-attended mediation Massachusetts Massachusetts alimony and child support Massachusetts Alimony Reform Act Defense of Marriage Act Massachusetts Lawyers Weekly dispute resolution traditional negotiations disputes resolve disputes lawyer Family Law Arbitration Levine Dispute Resolution how baseball arbitration works health insurance Obamacare health coverage divorce judgment alimony divorce agreement alimony statute Massachusetts divorce lawyers Baseball Arbitration Cohabitation Child Support Guidelines family and probate law disputes Divorce Agreements family support COLA Chouteau Levine arbitrators family mediation Alimony Reform Act LDRC Self-adjusting alimony orders arbitrator divorce process self-adjusting alimony family law arbitrators MLB labor agreement lawyers alimony law child support Boston SJC arbitration alimony reform legislation annulment divorce litigation DOMA support orders divorce mediation Same Sex Marriage mediator divorce and family law mediators divorce mediator family law Matrimonial Arbitration Baseball Players divorce arbitrators divorce and family law Levine Dispute Resolution Center The Seven Sins of Alimony med-arb divorce arbitrator separation private dispute resolution high-risk methodology alimony orders mediators Major League Baseball Arbitration divorce arbitration family law arbitrator IRC §2704