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Divorce Mediation Blog

Massachusetts Alimony and Child Support: Much Ado About Double Counting

Wednesday, March 19, 2014

At the November 22, 2013 MCFM Institute, and in many other settings, divorce lawyers, mediators and judges have considered and debated aspects of the interaction between the March 1, 2012 overhaul of Massachusetts alimony laws and the August 1, 2013 revamp of the Child Support Guidelines, here. One of the hottest topics was the apparently inconsistent way in which each body of law treats the other! At LDRC, we waded into the deep end by addressing the subject in two blog entries, which we have edited only lightly here for FMQ.

 

A Gathering of Mediators: Part 2

Wednesday, October 16, 2013

Over October 3-6, 2013, both principals of LDRC attended the second annual meeting of the Academy off Professional Family Mediators (APFM), in Denver, CO, of which we are both founding members. While mixing with an international group of dedicated family and divorce mediators, we attended many hours of programming on topics ranging from risk and resilience in children of separation and divorce, to high conflict mediations, the science of forgiveness, bankruptcy and collaborative approaches to marital agreements.

As this group matures, the devotion of its members to finding better ways to serve families in crisis continues to impress, as does the intensity of APFM’s focus on broadly defined continuing professional education. By speaking with, and watching demonstrations of, other expert mediators we learn new skills, stretch existing ones and accumulate greater insight into our field. Applying this learning in our practice cannot help but enhance our ability to provide a higher level of mediation service, always our goal.

We look forward to a long association with and participation in this important new organization.

 

A Year in the Books (and a good one at that) - Levine Dispute Resolution

Monday, December 31, 2012

By William Levine

As 2012 dissolves into 2013, we at LDRC can’t believe how fast our first year has gone, or how incredibly fulfilling it has been.  After opening our doors on January 17th, two (2) jammed open houses, lots of blog entries, our inaugural newsletter, website improvements -- including the launch of our mobile site; and a case flow that we could not have expected so early in our history – with many repeat customers we have much to make us grateful.  

With both of our locations (Greater Boston and Western Massachusetts) humming, our mix of mediation and arbitration continues to evolve.  With direct client mediation and lawyer-attended mediation predominating, our market for private dispute resolution in the nature of case management and decision-making as arbitrator or special master is established and growing.  Our work in advocating for a specialized family law arbitration statute continues, with support for that effort slowly growing.  

We continue to write, to teach and to train mediators.   We will issue our second newsletter early in the new-year, and our latest article will be published in the spring.  Of course, the direct dispute resolution work that drives it all goes on.  As we do it, we are mindful of the pressures of and challenges to our society, government and economy that recent and ongoing events present to all of us; and we are determined to remain a positive force in our community in 2013.  

Thanks to all of our clients, referral sources and allied professionals for your support and encouragement this year.   We look forward to continuing to service you, your clients, colleagues and friends in the coming year; and we wish you all a happy and healthy 2013.

And, please keep looking in:  our blog is just getting started.

 

Masters and the Probate & Family Courts

Wednesday, December 12, 2012

The Probate and Family Court appoint two kinds of “masters”. A master is a lawyer who holds hearings as an extension of the Court itself. One kind is a “discovery master”. The other is a “master, facts final”.

A discovery master aids the Court’s case management by helping the attorneys negotiate, and if necessary by deciding disputes over the exchange of information, known as discovery, in the litigation process. Each side may challenge the discovery master’s decision to the appointing judge, but they rarely do so. This is because the lawyers generally feel that the master process was fair and that a judge will likely address the issue in the same or a similar fashion as the master.

A master, facts final, hears some or all of the contested case, and makes a recommended judgment. The process follows the same rules as in court, unless the parties agree otherwise. One or both parties ask the Court to “confirm” the master’s recommended judgment. If one party disagrees, he or she retains the right to oppose the entry of the master’s decision and a court judgment. The Court retains the right to accept or reject the master’s recommendation in whole or in part.

Where parties cannot settle their matter by direct negotiation, by mediation or otherwise, the use of either kind of master is a way in which they can maximize control over their case, by selecting their own master, and by pursuing what is a mostly private proceeding that most often results in the agreed entry of judgment based thereon.

With our courts in crisis, this avenue is being followed more and more. Most every judge is happy to approve a selected master and to stand by for the master’s result. When faced with long delays and abounding uncertainties in the public trial process, due consideration should be given to the use of a master for all or part of a contested case.

 

Bullish on Alimony at the Fiscal Cliff

Friday, December 07, 2012

People in the business sometimes joke that alimony is the last tax shelter. Each dollar of alimony paid is subsidized by an absolute dollar-for-dollar adjustment to income, which at the top federal bracket saves the payer 35 cents. The tax burden then shifts to the payee, who pays taxes on alimony received, at his or her blended tax rate. For a $100,000.00 per year alimony recipient, if he/she has no other tax deductions (not very common), blended federal taxes total about 20%. Thus, the government loses 15 cents per alimony dollar. (At lower alimony levels, the payee’s tax rate drops and the treasury's proportionate loss increases.)

That brings us to the dreaded Fiscal Cliff, where tax rates and tax “reform” dominate the public discourse. By all media reports, increased tax rates for the “top 2%” are all but inevitable, while reform is also in the wind, now or shortly later. Reform seems likely to include at least some limitations (read, reductions) of itemized deductions such as home interest, local taxes paid and employer provided health care.

Yet, with all the talk of cutting tax preferences, we have not heard a word about any threat to the alimony deduction. Could this be because alimony payers are a formidable interest group? Is it that too many Congressmen pay alimony? Is it that alimony dollars are taxable to someone – the recipient? Maybe, the cost to the treasury is not great enough to garner attention. Whatever the reason, the alimony deduction, like the near-sacred charitable deduction, seems safe.

In fact, it looks like the value of the alimony tax deduction will increase in 2013 since, as the tax rates of alimony payers increase, so too will their alimony subsidy. If the top bracket resumes its Clinton Era 39.6% level, the value of the deduction for the high income earner will increase commensurately: a 13.1% increase! Where else do we find a tax shelter of increasing value in Fiscal Cliff America?

 

Pet Protection: A Judge Takes Action

Wednesday, December 05, 2012

The November 28th Patriot Ledger reported that Judge James Menno, of the Plymouth Probate and Family Court, had entered the first court order of protection for a pet, permitted under a recent statutory enactment signed by Governor Patrick. LDRC’s Chouteau Levine recalls from her years on the bench that serious abuse cases routinely included threats of and/or acts of abuse towards human victim’s pets. Abuse is abuse, whatever its manifestation. That Judge Menno made the first order of this kind in Massachusetts is both random and fitting. No judge has a bigger heart or inclination to use his bench authority to protect and benefit his litigants and their dependents.

Dogs have long been recognized for their forensic and security usefulness to police and military institutions, as guides for the blind and most commonly, as beloved family members. In an era in which offices, hospitals, therapists and even courts are using or experimenting with pets as aides to reducing stress their own uniquely stressful environs, the role and importance of pets continues to grow. We have seen this principle at work in our own practice at LDRC.

For restructuring families, the disposition of pets is a growing demand. Some states have dipped their toes into “pet custody”. We have not, which is probably appropriate. Pets remain “property” under our divorce framework. But, under Massachusetts law, people may now fund testamentary trusts to provide for care of a pet; and now Judges like Menno may enhance the security of these important members of our society.

Good for Judge Menno, and good for all of us.

 

What is a Dispute Resolution Coordinator?

Tuesday, November 27, 2012

For one thing, it is a name that we made up!

More importantly, a dispute resolution coordinator (DRC) is an impartial professional who is named in a settlement agreement, often a family law agreement at or after divorce, to stand by as an out-of-court resolver of disputes. The disputes can be big or small: are the parties properly implementing their property division; do the parties agree on events during the marketing and sale of a home; have taxes been properly allocated; or is support in need of revision?

Generally, the parties grant the DRC the duty of trying to mediate a solution to the issue at hand, but failing resolutions the authority to make a binding decision for the parties. The process can be efficient, flexible and inexpensive. The parties, who are often court-shy after having had some exposure previously, value the easy access, the ability to be “heard” and the finality obtained.

The parties select their DRC, increasing their sense of control, after a period in which they have seen and felt their autonomy compromised by an impersonal and public court system. Their lawyers guide them to the right person for the job, and their agreement usually provides a process for successor DRC’s, should the parties agree that a replacement is appropriate, or if the DRC becomes unavailable.

The parties to every settlement agreement that includes ongoing interaction of the parties should at least contemplate the possibility of a DRC.

 

Twinkies’ Mediation Reported

Wednesday, November 21, 2012

The Boston Globe greeted pre-Thanksgiving readers with the news that Twinkies are not yet dead. After Hostess Brands concluded that it could not survive negotiations with it bakers’ union, it asked the U.S. Bankruptcy Court for permission to convert its reorganization to a liquidation. Panic-buying consumed pre-fiscal cliff America, as Twinkies sales of $4 and $5 a pair were reported from online buying services.

But, the Bankruptcy judge pulled Ding Dongs from the brink. He ordered the ailing Hostess into mediation with the recalcitrant union, on strike since October, over threatened retirement and health insurance cutbacks. It is a time-limited reprieve: 24 hours to mediate. But the loss of Ho Ho’s, 300 reported jobs in Massachusetts alone and presumably the interests of creditors demanded one last effort, with the help of a skilled facilitator. So, the last firewall between a public starved for nostalgia (despite its presidential election decision – or maybe because of it) and its prized junk food is mediation.

Well, maybe not. The Globe also reported that the pending bankruptcy has drawn companies who are circling to pick the Twinkies brand from the bones of the dying Hostess, should she not survive the last-ditch mediation effort. Naturally, we are rooting for the mediator.

 

Divorce Mediation and Arbitration Hybrid

Thursday, October 18, 2012

We have recently encountered an interesting model for a hybrid dispute resolution process. It resulted from discussions with two family law attorneys who were motivated, along with their clients, to try hard to achieve a facilitated settlement, while avoiding the use of public trial in court, in any event.

The parties engaged both of the principals of LDRC to work on the case. They agreed to have their lawyers begin by informally presenting the essential agreed and disputed “facts” to one of us for an evaluation of strengths and weaknesses, followed by mediation. Failing settlement, the parties would then present the key disputed facts to the other LDRC principal, as an arbitrator, to decide and settle the key points presumed to be the root of the parties’ impasse. In the interim, the principals would not discuss the case with each other, at all.

With these key facts no longer at issue, the parties would return to work with both principals, now as co-mediators, bringing all perspectives possible into the mediation room, or quite likely, rooms (the mediators “shuttling” between each party-lawyer team). In the absence of resolution, the mediators would change hats, and simply decide the case as arbitrators.

We believe that this promises an efficient, fair and final process.

 

MA Bar Association Family Law Section Council Approves Proposed Family Law Arbitration Act

Monday, April 30, 2012

The Massachusetts Bar Association Family Law Section Council has approved the proposed Family Law Arbitration Act that LDRC's William M. Levine presented to it on behalf of the Massachusetts Chapter of the American Academy of Matrimonial Lawyers. Bill will appear before the M.B.A.'s House of Delegates to advocate for the proposed legislation on May 17, 2012. The House of Delegates decides, on behalf of M.B.A, if it will support submission of the potential state law to the Massachusetts legislature.

 



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