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Divorce Mediation Blog

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 4

Wednesday, November 29, 2017

“Marital station, when?”

Levine Dispute Resolution - Alimony

In this entry, we will begin discussing how the Young case determines “need” in the context of alimony.

We have long known that need is a relative term. “The standard of need is measured by the ‘station’ of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.” Grubert v. Grubert, 20 Mass. Ap. Ct. 811, 819 (1985).

This is sensible, given that marital station is fueled by the parties’ financial resources, generally income from employment or self-employment. For one couple, subsistence may characterize the marital standard; while country clubs, international travel and maybe even cash available for investment, might be necessary to grasp the breadth of a high income living standard.

In Young v. Young, the trial judge chose to characterize standard by observing that:

    The husband's substantial compensation package allowed the parties to enjoy an affluent, upper-class station in life and marital lifestyle during their marriage.

Critically, she did not “…make a finding regarding [the wife’s] actual weekly or annual expenses or needs.”, as seemingly required by Grubert’s “what is required” mandate. (More on this is a later blog entry.)

The case does not disclose whether or not the judge looked at this question with a temporal focus, yet it is something that we have always found to be unclear in our law. After all, “during”, without more, seems to cover an entire marital span, in this case, 24+ years.

In many cases, the parties separate at their highest income level, when careers are successful and linear. But, what of couples with variable living standards because of industry volatility, entrepreneurial cycle, episodic illness or simple luck (good or bad)? How to measure their marital living standard?

The Supreme Judicial Court (SJC) approached this problem in Young for reasons that are not apparent, since there was no evidence recited beyond the expectation of unceasing rise of standard. The SJC had touched on it in Pierce v. Pierce, 455 Mass. 286, 296 (2009), which the Young court summarized as

    … [T]he recipient spouse’s need for support is generally the amount needed to allow the spouse to maintain the lifestyle you were she enjoyed prior to termination of the marriage. (Italics ours)

“Prior to” implies, at least, that trial judges should look to a timeframe that is somehow proximate to divorce, and the Young court looked approvingly to a treatise, stating:

    [S]ee also 1 Lindey and Parley on separation agreements and antenuptial contracts §22.63[2][e] (2d ed. 2017) (‘standard of living experienced during the several years before the divorce [is] relevant for alimony determination is pre-separation standard of living)… (Italics ours)

And yet, at Footnote 8, the Young case states:

    In light of this conclusion, we need not address the husband's argument that the judge was clearly erroneous in finding that the husband's income will continue to grow on an "upward trajectory." Even if it did, the wife's alimony would still be limited to the amount needed to allow her to continue to live the lifestyle she enjoyed at the end of the marriage. (Italics ours)

So, which is it? At the least, the SJC’s mixed signals may open the door to living standard evidence that is broader than simply that which existed on the eve of divorce, inviting evidence that might have been excluded previously on relevancy grounds, and it may allow the courts to take account of the more volatile, or inconsistent at least, economic fact patterns, which probably makes good sense.

Think: a high standard that dips late in marriage, or a lower one that spikes at the end. Giving the trial judge access to broader evidence suggests concomitant discretion in the ultimate marital standard finding.

As divorce mediators, we think it is good to encourage parties to look at the “need” question more openly; and as family law arbitrators and masters, it is instructive to know that SJC recognizes the possibility at least that “station” evidence need not be static in appropriate circumstances.

In the next entry, we will discuss a particular challenge that the trial court with have on remand in the Young case.

 

“Judicial Restraint” an Interesting Bercume Redux in McClelland v. McClelland

Wednesday, June 21, 2017

Levine Dispute Resolution - Judicial Restraint

Two aspects of the a recent “unreported” decision of a Massachusetts Appels Court panel, are worthy of note, and provide important cautions to judges, family law arbitrators and drafters, alike.

  1. Judicial restraint. We don’t recall ever seeing this phrase about the divorce court’s exercise of broad discretion before. In McClelland v. McClelland, the parties provided in their separation agreement that the husband would pay 75% of the children’s secondary school expense. In a later modification action, they agreed that each parent would pay 1/3 of college costs.

    In a second modification, neither party sought review of either education term, focusing rather on periodic alimony and child support matters. The trial judge terminated alimony, increased child support (more below) and – on her own initiative - loaded the full college burden on the father.

    In reversing, the Appeals Court panel called this a “forceful case for judicial restraint”, cautioning judges against unravelling prior agreements reached by parties when no one is complaining about them.

    As divorce mediators, we certainly understand and support the concept that a court should not undo consensus where it exists (assuming no public policy problems). After all, client empowerment is our calling card.

    Yet, as a family law arbitrator and special master, and as a former judge, we also understand the trial judge’s temptation. After all, education costs are an adjunct to support; and one could easily see how a change in support as compelled by the evidence of changed circumstances, could render a previous college cost arrangement unfair or even untenable.

    It is tempting to think that a failure to address this reality will just beg a follow-on modification action to demand exactly what seems sensible to adjust, now.

    On balance, we think that the Appeals Court’s suggestion is sound. It is the judge’s job to decide pleaded controversies, not create them. If the new judgment does not make sense in the context of matters not pleaded, that does not make the court responsible for the collateral outcome, even if those matters that should have been pleaded. A good pre-trial conference, and with effective divorce mediation, should surface these issues, sometimes causing the parties to broaden their issue lens, and perhaps even amend pleadings. But once adjudication begins – as McClelland suggests - judicial restraint, in the form of fixing what is before the court, and not what should be there, is both prudent and proper.

  2. Parties’ Intent. The divorce agreement and judgment required the husband to pay 19% of his pre-tax income as alimony and 19% as child support. The judge in McClelland, terminated alimony but increased child support to 25% of the father’s gross pay.

    The Appeals Court supported the alimony ruling but vacated the child support, indicating that the judge’s writing did not evidence proper heed to the parties’ perceived intent that child support be limited, on its own merits, to 19%; and Bercume v. Bercume requires special care in trying to observe and make when possible defer to intent, even when the provision under review merged in the previous judgment.

    The Appeals Court remanded the case to the trial judge, simply ordering her to write additional findings in explanation of why respect for the parties’ apparent intent was overcome by other material changes of circumstance, necessitating a support change.

    Negotiators, divorce mediators and agreement drafters should take heed. Frequently, the parties strike support deals with the assumed comfort that a judge would have broad discretion to re-structure a support package to meet changed facts in the future; and that the initial structure, will not unduly hamper a modification judge, when the parties’ financial profile has substantially changed. This should not deter any one from careful and efficient support structuring, but as Huddleston and Bercume taught, the parties spell out their intent where they can.

    For example, a divorce agreement could say that: “The income percentages expressed in this provision meet the parties’ current needs, but the parties do not intend to limit or impair the court’s discretion to modify support in accordance with circumstances existing at the time of any future modification judgment.”

    The law of unintended consequences can hurt a lot, and at other times, it can be a gift. There is a time for strategic ambiguity, but only when it is itself intended. Careful drafting that spells out intent and does not leave it to later inference, or even speculation, from the bench, when someone’s ox will be gored.

    Just ask poor old Dr. Huddleston.

 

Probate and Family Court New Standing Order 1-17 on Parenting Coordination: A Baker’s Dozen of Interesting Aspects, Plus One

Wednesday, March 15, 2017

[Preface: We do not accept parenting coordinator assignments, but as divorce mediators, we do address parenting coordination in agreements from time to time, with clients. Our observations follows the order of appearance in the rule and not any editorial priority.]

  1. No review process for binding PC decisions: Rule (1)(e) asserts that a PC appointment does not divest a court of continuing jurisdiction over child matters “…even where the parties have agreed to [PC] binding decision-making authority...” But, Rule 1-17 provides no special limitation on the scope of issues on which an agreed PC may make binding decisions. More surprisingly, there is no requirement that a party have the right to seek court review of a binding PC decision, nor a defined action to facilitate same, and no standard of review. Does this undermine parens patriae?
  2. Training of PC’s: Rule (3)(c) mandates 6 hours of continuing education for PC’s, including lawyers. According to Lawyerist.com, Massachusetts stands among only 5 states that do not have mandatory lawyer CLE, https://lawyerist.com/40252/how-wacky-are-mandatory-continuing-legal-education-rules/) For the mental health community, this is nothing new.
  3. Joint petition required: Whether intended or not, Rule (5)’s introductory clause requires that PC agreements may only be proffered to the court by joint petition for modification (Form CJD 124). This seems odd when many appointments come at the time of divorce.
  4. Designations of PC’s: Rule (5)(b)(i) requires that agreements to appoint a PC identify the person selected, since the PC must sign the agreement. Gone are the days of agreement deferrals, such as “…to be selected by the parties within 30 days.” Smart.
  5. Specified duties: Rule (5)(b)(iii) requires that agreement clearly specify (and inferentially, limit) the PC’s duties. This is a critical need.
  6. Limited duration by agreement: Agreements must specify duration of the PC’s engagement in Rule (5)(b)(iv), subject to remedies to shorten or extend (Rule (14)). Co-parenting problems that persist indefinitely suggest that PC intervention is insufficient.
  7. Spending cap: In addition to specifying fees and each party’s responsibilities to pay, Rule (5)(b)(v) mandates a maximum obligation for each party over the life of the PC’s appointment. This may be observed more frequently in the breach.
  8. Colloquy: Rule (5)(c) subjects every PC agreement to specified questioning by the court before its approval. Especially given observation #1, this is essential.
  9. Merging agreements only: Rule (5)(c) introduces the colloquy requirement with “Before…incorporating and merging the agreement in a judgment…” It appears that the court may not approve a surviving PC provision. We guess that the Probate Court does not want the “countervailing equities” standard to get in the way of ending PC interventions.
  10. Limited duration by court initiative: A court-initiated PC appointment may not exceed the duration of litigation, or 2 years after judgment under Rule (6)(d), the latter subject to 1-year extensions (Rule (14)(a)(3). Ibid., Observation #6.
  11. Limited duties: Rule (7) tightly regulates a PC’s permissible duties, without any catch-all flexibility. Maybe expedient, but shouldn’t competent adult be able to fine tune this?
  12. Not mandated reporters: Rule (10)(b) relieves PC’s of mandated reporter obligations, in the event of suspected abuse or neglect. Presumably this does not excuse PC’s who are mandated reporters by professional licensure; but lawyers, who are not, do not take on this added burden.
  13. Standing: PC’s have may independently bring motions or complaints to seek appointment of a G.A.L to waive a child’s psychotherapist-patient privilege, under Rule (10)(c). Yikes! This rule absolutely be part of the colloquy, if it needs to be in the rule at all.
  14. No conflicts: Rule (10)(c) bars G.A.L.’s or other professional in the family’s life already from serving as PC. This reflects this professional consensus, though, in a way it is too bad that competent parties can’t be trusted to waive one of these known conflicts, for someone who has already earned their trust, with knowledge and after advise of counsel.

 

Rule 2704 Opposition - Talking Points

Wednesday, November 23, 2016

Recently, we blogged about the Internal Revenue Service proposed new section 2704 rules, which if enacted in their current form would create a new minimum value for businesses subject to intra-family transactions, and essentially eliminate discounts for marketability in that context.

Many in the business appraisal and estate planning communities are up in arms, and they mobilizing to defeat this IRS move, before it becomes entrenched.

While keeping an eye on unfolding commentary, we ran across “talking points” suggested by the American Society of Appraisers for use in opposing the new regulations. In summary they are:

  1. By increasing the value of fractional interests in family businesses, the new rules would result in an "stealth" tax increase of 25-50% in estate and gift taxes.
  2. By treating intra-family actors as "known parties", rather than hypothetical buyers and sellers, the rule would disregard the reality that a fractional interest is in fact, fractional, and not controlling, reducing its economic value.
  3. The notion that families will always work in concert has been rejected previously by the United States Supreme Court.
  4. The suggestion that intra-family transfers should be treated differently than those between unrelated parties is unsupported by any public reasoning advanced by the IRS.
  5. The proposed rule may put IRS regulations on a collision course with various state laws which recognize applicability of marketability discounts.
  6. This new approach will cause family-owned businesses to delay capital investment, and inhibit new hiring, as they preserve cash for pain increased taxes.

As divorce mediators and arbitrators, a former Probate judge, and litigators-in-recovery, we are used to this approach from Bernier, in the divorce context, but in estate and gift taxation?

What do you think?

 

GUEST BLOG: Facilitative Mediation Includes Informed Decision Making

Wednesday, August 17, 2016

[This letter to the editor of Lawyers Weekly highlights an important debate within the mediation community. We post it with the authors’ permission. John Fiske and Diane Neumann are giants in our field, and trained both of us.]

July 25, 2016

Letter to the Editor
Lawyers Weekly

Re: Facilitative Mediation Includes Informed Decision Making

Thomas Elkind’s Opinion of June 20 advances our understanding of mediation in distinguishing between facilitative mediation and evaluative mediation. In the latter, the mediator is almost a conciliator and the parties look to the mediator to advise them of the strength of their position. In the former, Tom says facilitative mediators spurn all techniques that seem to involve any evaluation of the parties even if it leaves them uninformed about the laws or procedures that might affect their positions. We disagree, maybe just a difference in emphasis.

Since 1989 we have taught over 1,000 people a different definition of facilitative mediation in our Divorce Mediation Training Associates programs. We believe facilitative mediation is informed decision-making, in which the mediator makes sure both spouses have accurate and relevant information about the laws affecting divorce and the procedures available for obtaining a divorce. The Standards of the Massachusetts Council on Family Mediation say “The mediator has a responsibility to the parties to help them reach an informed agreement.” In addition to encouraging the parties to, seek professional advice, “The mediator may give general information that will help the parties make their decision.” For example, the mediator may explain income tax and other differences between alimony and child support so that the parties know which approach may be more advantageous, or may tell the parties about how they could choose to divide a 401(k) retirement plan with a Qualified Domestic Relations Order, or inform couples married 9 years and 6 months that if they are married for at least 10 years there is a Social Security spousal share benefit.

As Tom writes, both types of mediators need to know the judicial process. Sharing that knowledge with both parties is not the same as giving legal advice to one party about what action should be taken. Part of the great satisfaction we derive as family mediators and mediation trainers is offering a process in which the clients choose their own particular solution with knowledge of the relevant law, sometimes deliberately offering something more generous that the likely legal outcome. It does happen.

Diane Neumann and John A. Fiske have been training divorce mediators since 1989.

 

SJC Authorizes Parenting Coordinators, Just Not the Kind that Most People Want Bower v. Bournay-Bower

Wednesday, December 17, 2014

In the recent case Bower v. Bournay-Bower, the Massachusetts Supreme Judicial Court (SJC) authorized Probate and Family Court judges to impose a parenting coordinator on parties in “appropriate circumstances”. While not specified, such circumstances may be summarized as the bane of every family court’s existence: those in which parents, for whom chronic fussing is engrained, bug the court endlessly with petty and occasional non-petty disputes, which the court has little power to address effectively. The case is significant in that it permits the court to offload ceaseless disputes to private providers, for which the parties must pay (unlike court); and it will successfully divert many cases from the court’s docket, because it will provide a ready alternative outlet for issues that may be solved by persuasion, rather than authority.

What the court did not do was permit the courts to impose a parenting coordinator who has any binding powers of resolution. In Bower, the trial judge authorized the parenting coordinator to make decisions for the parties in the absence of agreement, subject to a party’s right to seek to vacate or alter the parenting coordinator’s “order” (a largely illusory “right”, since the issues most often involve imminent events, and that no procedure for review by a court actually exists). The SJC, quite correctly, vacated this portion of the trial court’s judgment, as an impermissible delegation of the court’s constitutional responsibility as parens patriae guardian of children’s best interests, when parents’ interests collide. We have long expected that this prohibition would emerge when a reviewing court addressed this important issue squarely.

As divorce mediators, what interests us more is something that the SJC did not say; namely, if parties give binding powers to a parenting coordinator in a domestic relations agreement that a Probate Court judge approves, may this agreement/judgment then be enforced? In other words, may competent and consenting adults delegate authority in a manner that the court may not do unilaterally? Since Bower does not mention this at all, negotiating parties still do not know if such a parenting coordinator agreement is valid.

Philosophically, we are of two minds. We are somewhat profoundly concerned by the concept of two competent parents giving decision-making authority over them and their children to any “stranger”. Yet, if they have the shared insight that their children will be better off for having a strong presence that can cut parental feuding, who is to say that they should not be able to do it? The SJC, perhaps; but they have not said it yet.

This is one example where we wish that the SJC had gone one logical step beyond the facts of the case before it, and settled this issue. Since they did not, people will continue to draw agreements that create parenting coordinators with privileges, until the courts resolve the question, one way or another, for good.

 

Post-divorce Tort Suit: Kelso v. Kelso A Concern for Divorce Mediators and Circular Reasoning?

Wednesday, November 12, 2014

The Massachusetts Appeals Court recently reversed a Superior Court judge’s dismissal of a lawsuit for dollar damages brought by an ex-husband against his former wife, after a fully litigated divorce judgment had issued, in Kelso v. Kelso. The technical details could only be interesting to lawyers, parsing claim and issue preclusion, and yielding the result that even though the divorce judge had heard may of the same facts that were alleged in the follow on lawsuit, and had awarded fees to the husband in light of those facts, that none of the legal claims now pressed were at issue in the divorce case. Hence, the appellate court concluded, the suit is not barred by law, and may proceed to trial.

The useful reminder of this case for us, as divorce mediators, is that when parties settle a case, they generally sign off on binding waivers for liability on all acts and omissions of each other, up to the date of the agreement, thus precluding a later suit for damages. Not so, when the parties try a case to a judge because in that context there are no waivers signed of any kind. Part of our charge as mediators is to run a process that leads to knowing agreements. The Kelso case poses a challenge to us: to make sure that clients (who may be harboring thoughts of a later tort suit) understand the effect of the general waivers in divorce agreements; i.e., there will be no suits for any past acts, that are not expressly reserved in the agreement. It is just one more good reason for our firm policy that requires clients to have legal counsel to review any agreements that we draft, at the end of a successful mediation.

On a more arcane level, we ask the following: if the tort cause of action is based on facts that all occurred before the divorce trial, and if the future tort plaintiff did not disclose the existence of a chose in action on his or her trial financial statement, is not any recovery that occurs in the later suit a marital asset that was not divided by the divorce court, and thus, divisible in a post judgment action? If the chose in action was not disclosed on the financial statement, was a fraud committed, yielding a potential recovery back to the tort-defendant?

Starting to sound circular?

 

Rehabilitative Alimony: Its All about the Effort, Or is It? Zaleski v. Zaleski, Part One

Wednesday, September 17, 2014

In its second case decided on the Massachusetts Alimony Reform Act, eff. 3.1.12, the Supreme Judicial Court (SJC) upheld the judgment of Probate and Family Court Amy Lyn Blake in which she awarded 5 years of rehabilitative alimony to the wife at the conclusion of a 16 year marriage. In Zaleski v. Zaleski, the wife claimed that Judge Blake had abused her discretion by opting for this restrictive form of spousal support, with its short time limit and heightened standard for extension, over general term alimony, which could have run an additional eight years, with a lower standard for extension.

A basic inference from Zaleski is that the SJC means business when it comes to implementing the legislative imperative: that the days of unlimited alimony are past; and that even with a marriage of long duration, and a high standard of living, if a trial judge writes comprehensive findings of predictable employability, she should expect to be upheld. That said, the case presents a number of other interesting aspects that we will begin to explore in this and subsequent entries.

We start with a curious line between this case and a previous "unreported" decision of the Massachusetts Appeals Court in Nystrom v. Nystrom, about which we wrote on July 9th. The SJC trumps the Appeals Court, especially when the latter's opinion is only that of one panel, unendorsed by the court-at-large and thus not binding any subsequent court, the differing conclusions of the two appellate courts illustrate to us, as divorce mediators, just how fraught litigation is with chance.

The Nystrom panel vacated a trial judge’s award of 6 months of rehabilitative alimony, focusing on that part of the statute that permits the trial court to limit alimony to a period of five years or less for a spouse who is "… expected to become economically self-sufficient by a predicted time, such as,… [by reason of] reemployment…” That judge had concluded that the wife had the ability to become reemployed within 6 months after judgment, and supported this view by finding that the wife “…had not used sufficient best efforts in becoming reemployed…”,. The appellate critique was that the trial court had not expressly discredited the wife's testimony about her unsuccessful job search efforts, and that there was no conflicting testimony that the judge could use to support her finding.

In Zaleski, by contrast, the SJC endorsed Judge Blake’s conclusion that the wife's “… job search efforts had been sporadic and superficial, and that she had not used her best efforts to secure employment." Further: "the judge was not required to credit, or give significant weight to, the wife's assertions as to those steps she had taken in her job search..." Thus, the SJC concluded, that its trial judge was justified in her prediction that the wife would become economically self-sufficient by attaining reemployment at a predicted time.

What led 2 appellate panels to reach opposite results, in the same rehabilitative alimony context? One difference is that the husband in Nystrom did not offer any expert testimony on the subject of the wife's employability. By contrast, Mr. Zaleski did offer an expert to challenge the wife’s self-serving testimony. (Neither wife had an expert.) But, if either expert witness commented on the wife’s job search, neither panel told us. Moreover, Judge Blake “…did not credit the opinion of the husband's expert that the wife was highly employable as a sales manager or marketing manager … but did find that the wife had skills that were transferable across many fields beyond pharmaceutical and medical device sales." So, at least as disclosed by the SJC, Judge Blake did not rely upon the expert in making the apparently critical finding that the wife's job search had been lacking.

A second difference between the two cases is the ages of the wives whose employability was examined. Ms. Nystrom was 58 years old at the time of trial, while Ms. Zaleski was 13 years younger. One could certainly imagine an appellate panel being more skeptical about the job prospects of a woman who was 60 by the time of its opinion, than for a younger person. A third difference was the economics of the two cases. Ms. Nystrom had a five-year earnings average of under $50,000 while Ms. Zaleski had earned in the range of $170,000 at her peak; and, the former was to receive $300 per week of alimony in the latter 9 times that amount. But, if these factors were critical to the thinking of either appellate court, they did not say so.

Perhaps, the most important factor, albeit unspoken in either case, was that the older woman was given 6 months to find self-sustainability by work while the younger was awarded a far higher sum of alimony for 5 years, at the end of which term, she would be “just” 50. Maybe, in their undisclosed thinking, the SJC justices believed that the policy behind alimony reform was advanced by what it deemed a reasonable rehabilitative period, while the Appeals Court felt the 6 months allotted to Ms. Nystrom simply unfair.

Ms. Zaleski's lawyer, Paul Perrochi, told Massachusetts Lawyers Weekly that the “the lesson to be learned is [in] some of these cases you have to win at trial court." Especially true in discretion-laden family law, where the likelihood of reversal on appeal is generally low. But, as divorce mediators, we have to ask potential litigants, should you be taking the chance on "winning" anywhere?

Next: Rehabilitative Alimony: Whatever Happened to Needs? Zaleski v. Zaleski, Part Two

 

Do Mediators and Court Reformers Enable Divorce? Jennifer Graham Might Think So

Wednesday, July 16, 2014

In her June 16, 2014 Boston Globe column "The divorce is worse than the marriage", Jennifer Graham praised a movement to curtail access to divorce in America, lamenting that “conservative” efforts to make divorce more difficult to obtain carry the political/cultural tag of being "fringe". She contends that the near universal right of divorce without cause has become politically correct and, thus, immune from clear-eyed political re-examination. Coupled with the damage that divorce inflicts on family life, social stability and children's well-being, she crudely terms divorce in the 21st century a "...sacred cow with poisonous teats...” To stem the tide, Ms. Graham suggests that perhaps pre-divorcing couples ought be required to endure a day in family court before filing is permitted. Her thesis suggests that watching the humiliation of others will slap couples back to sensibility, domestic tranquility, or at least resignation. Sort of a domestic Reefer Madness.

Tasteless analogy aside, Ms. Graham ‘s piece raises an ironic question: do people who dedicate their professional lives to making divorce less humiliating and costly, more humane and child-sensitive, cause more harm than good, by making the divorce experience less poisonous for families?

They come in many professions and roles. They are judges, probation officers and lawyers; psychologists, psychiatrists and social workers; teachers and researchers; accountants and financial consultants. They experiment, innovate, mediate and collaborate. They work to make courts less intimidating and more efficient; to assist unrepresented litigants; to create early intervention programs to spot and address child trauma; to educate parents and allied professionals; and to create, refine and staff out-of-court dispute resolutions processes that stress self-determination, self-respect and privacy, outward respect and action on mutual interests and solutions. They pursue different theories and practices. They succeed and fail. They are united in common cause: to reduce trauma, to lessen cost and to enhance children's outcomes.

As divorce mediators, do we work at cross-purposes to Ms. Graham’s defenders of marriage? If fear of humiliation is an effective way to deter divorce, do well-meaning efforts to make divorce less traumatic undermine the family? History brings us the state of marriage. As divorce mediators, we cannot stop it; but we can make it less traumatic. If that enables divorce, sobeit.

Incidentally, we agree with Ms. Graham that good can come from a real day in court, but for different reasons. Real life court watching can provide perspective to those considering marriage, and those considering divorce litigation alike. To the former, the seriousness of the decision to marry may be reinforced; and viewing the agony of others may drive would be litigants to out-of-court processes that are less costly and destructive. It can encourage a wavering litigation client to settle, to avoid the spectacle and uncertainty of trial and pursue out-of-court options.

 

Divorce Hotel: And Idea Whose Time Should Never Have Come

Wednesday, June 18, 2014

In the Spring 2014 newsletter The Professional Family Mediator, Pascal Comvalius authors “Divorce Hotel on TV: Exploitation of Pain?”. The story is about a service where married couples check into a luxury hotel married, and emerge from a long weekend – presto – divorced! This latest divorce-ploitation horror orginates in Europe but it is certain to find adherents here, too. Can you say “California”? And, it is coming to your flat screen as a Fox reality show in development. No joke.

Mr. Comvalius’ piece focuses on the reality TV version of this very poor idea, citing the perversity of snaring low-income yet telegenic clients with fee-waived weekends, in return for TV rights; and the ability of the poor children of these couples to later view archived episodes of their parents’ divorces. Both legitimate anxieties.

But what reality reality? Divorce hotel, without the cameras, strikes us as about the trivialization of the divorce itself. Divorce, if taken seriously, should be difficult. It is serious emotional and financial business. It can also be edifying, and emotionally life-saving if handled sensitively and well. Packaging an emotion-packed, financially intense transaction about the rest of life, into 48 luxury hours, can’t help but strip the participants of dignity, and as importantly, deny them the right of a knowing and considered decision about anything.

As divorce mediators, we are all for stripping the divorce process of it gratuitous stresses, wasted time and unnecessary costs. We provide a safe space for people to take it at their pace, with time to reflect, to consult and to plan. Divorce Hotel provides an antidote to the adversarial system that may work for some, but for most, we suspect, the medicine will be worse than the disease.

And, just imagine the promos on the next Fox Super Bowl….

 



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