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REPORT ON LDRC

Part 1:
Forever Young I

On March 28, 2016, Massachusetts Lawyers Weekly (MLW) published our article, “The Curious Case of Variable Support Orders” (Vol. 45, Issue 13) which you can find at http://levinedisputeresolution.com/docs/Variable-Support-orders-3-28-16.pdf. We reviewed the scant case law here on point, and questioned the predicate for, and wisdom of, the Probate and Family Court’s reticence about making support orders that have self-adjusting features.

After our friend David H. Lee took us to task for seeming to encourage court-originated orders that could exceed the “need” of the recipient as the payor’s income rose, in a letter to the MLW editor dated April 25, 2016, we augmented our article with our own Letter to the Editor (May 16, 2016) that clarified our longer piece and reconciled it with the historic role of alimony: to meet payee needs. See, http://levinedisputeresolution.com/divorce-mediation-blog/need-and-variable-support-orders-they-are-not-mutually-exclusive.

Between our two MLW items, we felt that we made a persuasive case that the courts should be freer to use solid discretion in creating self-adjusting orders, especially where it serves the goal of helping the recipient resume the marital station, when the payor’s increasing income permits. In the vast predominance of cases, it is just not possible, we contended, for the parties to maintain their former marital station when the same income is split between two homes. A well-crafted variable order can meet three important goals: assisting the recipient-party in to re-attain the martial station; protecting the payor against downward fluctuations in income and resulting diminished ability to pay; and reducing the need for costly and lengthy modification litigation.

We believed then, and assert now, that Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814 (1977) justifies our view; and that Supreme Judicial Court’s (SJC) recent Young v. Young, ___ Mass. ___ (2017), despite its narrow application of that is closer to the marital experience, does not undermine, and may actually bolster our view.

There is no doubt that Mr. and Mrs. Young are part of the “one per cent”, for whom meeting literal needs is no stretch for either of them, making the analogy to the 99% challenging. Nonetheless, the SJC’s reliance on Stanton-Abbott encourages us that with the right case, the court may yet later relent, and enunciate the situation that we have described as a “special circumstance” to which variable support orders ought to properly apply, with care to be sure, but applied nonetheless. Today, we feature the first of several blog entries on this endlessly interesting case. Please take a look and grab our blog feed at www.levinedisputeresolution.com/divorce-mediation-blog/, for follow-on entries.

Part 2:
Forever Young II

Our guest writer today is the godfather of Massachusetts divorce mediation, John Adams Fiske. Please read his piece “Bargaining in the Light of the Law: The Case of Divorce”, which he recently wrote for MLW. It is a beautiful summary and deceptively simple appreciation of the history and evolution of our discipline.

Thanks for all you have done, and continue to do, John!

We wish you all a great fall and holiday season, and we’ll see you in 2018.

Chouteau & Bill

Bargaining in the Light of The Law: The Case of Divorce

By John A. Fiske

In “Bargaining in the Shadow of the Law: The Case of Divorce,” Robert H. Mnookin and Lewis Kornhauser. discussed many ways in which the law provides a framework for divorcing couples to define their own rights and responsibilities after divorce. 88 Yale Law Journal 950, April 1979. We have come a long way since that journal devoted its entire issue to conflict resolution, featuring their far reaching examination of private ordering in divorce. The concept could not have been more fitting, nor better timed. read more...

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 1

LDRC Blog

With the long-awaited case Young v. Young, the Massachusetts Supreme Judicial Court (SJC) has revisited the important question of when may a trial court originate self-adjusting support orders, a subject that we have addressed here twice before. See, http://levinedisputeresolution.com/docs/Variable-Support-orders-3-28-16.pdf and http://levinedisputeresolution.com/divorce-mediation-blog/need-and-variable-support-orders-they-are-not-mutually-exclusive

While the case does not address the situation where there is insufficient income to keep both parties living at the former marital standard of living, it does review and elaborate on existing precedent. read more...


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