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Divorce Mediation Blog

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.

 

Some of Our Best friends are Divorce Lawyers

Tuesday, October 08, 2013

There, we said it. Many of them are very good at what they do -- responsible sorts, even; and they are nice people. In a field and among circumstances that tolerate and even encourage some pretty bad behavior, sometimes divorce lawyers are the only cool headed adults in the room. Yet, in a culture that values lawyers only when you need one, we are very free to stereotype and thus condemn a whole walk of professional life with cheap jokes and throwaway lines that if spoken about a race, a gender, a sexuality or an ethnicity, would be taboo. Not so with lawyers -- divorce lawyers foremost.

Such was the case in September 23, 2013's Boston Globe column by Jennifer Graham. In her piece "Free to be you and mean", Ms. Graham explored the case of Lawrence Summer's fall from political grace, shunned from his desired job as head of the Fed, she claims, because he is a nasty man in the workplace. In pressing the theory that the public trust requires competency first and compatibility not-so-much, she reduces divorce lawyers to a cultural cliché, a rhetorical prop. Ms. Graham asks herself "...are there certain jobs where a certain level of jerkiness is an asset?" In mock seriousness we suppose, she answers:

"Divorce lawyers, maybe. I've heard it said that you should never hire one that you like."

We do not say that there are not divorce lawyers who are irritating, difficult, even unlikable. We know a few. Some of them make a pretty good living, too. But, does this make "jerkiness an asset"? In the perverse sense that being difficult to deal with sometimes does make divorce cases longer and more than necessarily complex, and therefore more profitable for the lawyers, can that really be said to be an advantage for the client? Our answer is: "almost never".

Liking your divorce lawyer is no substitute for hiring one who is smart, skilled and measured; but most clients most of the time benefit most from competent counsel with whom they wouldn't mind breaking bread, too. In a relationship that begins with faith and is built on trust, confidence and a sense of pride in being publicly represented by this person, likability matters. It matters in the feelings engendered in the client (often while absorbing unavoidable disappointment), in the opposing spouse, in forensic specialists, in courthouse personnel and -- very much so -- in judges who decide cases.

As divorce mediators and family law arbitrators, we are much aware not only of the competent service that we try to provide, but also the quality of the experience for the lawyers and clients who work with us. In our corner of the business, jerkiness surely does not pay. We know that we see a self-selecting population of clients and counsel -- those who have opted out of the more confrontational or extreme forms of dispute resolution, so we see little of the reprehensible few that Ms. Graham damns with disingenuous praise. But, the cause of one brilliant jerk doesn't justify smearing an entire craft, and it certainly didn't add credibility to the Graham piece.

Now, about journalists...

 

Alimony in Massachusetts: The Appeals Court Speaks First in Green v. Green

Tuesday, October 01, 2013

The first appellate case on the "new" Massachusetts alimony statute (eff. 3/1/12), has emerged from the Appeals Court. In the case Green v. Green, the court addressed a provision that many think was central to the bill's passage: the presumption that when an alimony payor reaches a defined "retirement age" support should usually end, whether or not actual retirement has occurred.

Since enactment, lawyers and judges have wondered about the hard cases presented by very long-term marriages that may have the most entrenched economic dependencies and the shortest runs to retirement age. They correctly understood that a presumption may be overcome by compelling facts, empowering judges to "deviate" from the retirement age cut off. Most expect judges to be undeterred from exercising sound discretion in extending alimony in appropriate cases.

So, it is not very surprising that the first case (a so-called “unreported” or “Rule 1:28” case, but influential nonetheless) deals with this issue, but with a twist. The Greens were married for 47 years -- long-term by any measure. Both parties were already past the statutory retirement age, and Mr. Green was still working; and if the Appeals Court's reported facts are correct, he did not object to paying alimony for the rest of his actual working life. The problem was that the Probate and Family Court judge who tried the case set a different "date" for termination than required in the deviation section of the alimony law, namely the date upon which the Husband actually retires, at an indeterminate point in the future.

In critiquing the judge's decision, the appellate panel wrote that the judge apparently thought that the wife's loss of alimony at the time of the husband's retirement would be offset by the onset of payments from the husband's teacher pension, of which the wife will receive half under the divorce judgment. The Appeals Court apparently assumed that the wife's needs and other resources, and all other relevant factors would remain steady; and that therefore, the Probate judge's assumed expectation was unjustified on the record, as lacking factual assessment of how much the retirement pay will actually be. They sent the case back with the order that the judge determine this one expectation only, then presumably to reconsider the termination part of the judgment.

It seems to us that the Appeals Court made an assumption about the trial judge's motivation that is not necessarily right; and then they built an infirm conclusion on that shaky premise. Maybe, the trial court was not thinking of the pending pension payments as a surrogate for the adjudged alimony sum. Maybe, instead, the judge was regarding the statutory framework, the significance of the retirement age presumption in the new law and the mandate that when deviating from presumed termination, she must set a new termination date. In this case, she picked a logical one, the point of actual retirement.

Maybe, too, the trial court was mindful of the fact that she does not have a crystal ball to foretell the myriad relevant circumstances that will accompany the Mr. Green's retirement, beginning with the assumption that he outlives his career. The respective financial needs of the parties will change: it is not uncommon for seniors to cut back on their lifestyle expenses; nor is it unusual to be swamped by medical costs or other calamities. Investments may fail or flourish.

The legislature did not repeal the historic concept that court-made modifications need generally occur when actual relevant facts are known, and not at some earlier, indeterminate time based on hypothetical circumstances. Had the Appeals Court let the trial court decision stand, at the time of the Husband's actual retirement date, when the relevant facts are in, the wife could have sought to extend the alimony if then justified by the facts and circumstances. This, it seems, would have been more consistent with the legislature's most likely intent; and respect the appellate courts' own precedents. Instead, we fear that Green begins the shaping of the appellate response to this incredibly complex and important statute, on a surmise and a half-measured remedy.

Earlier, we wrote about how we, as divorce mediators felt advantaged in our freedom to explore this statute with clients and their counsel, free of confusing and contradictory appellate law. Today, we are a little bit disappointed, and a little more apprehensive about what is to come.

 

2013 Child Support Guidelines Preview Part 5: Slicing The Parenting Plan?

Wednesday, August 28, 2013

For as long as we can remember, child-support-payors-in-waiting, generally fathers, have pressed for greater time with their children at the risk of being accused of posturing for lower payment obligations. Primary caretakers, often mothers, face the opposite suspicion. Sometimes the charges are on-target, often not.

Lawyers, courts and divorce mediators alike have long struggled to convince people to think about parenting first, then consider the support obligations that should flow from a well-reasoned parenting plan. The initial Massachusetts Child Support Guidelines (CSG) supported the parenting-first approach, by not addressing – as some other states’ CSG had – child support as calibrated by hours of care.

The 2009 CSG premiered two steps in the opposite direction, yet both of them had logic, and perhaps addressed a need. First, CSG established that the presumption of minimum child support payments assumes that the recipient parent provides about 2/3 of parenting responsibilities, a proxy for “primary care”. Second, for cases of approximately equal time parental care, the 2009 CSG established another minimum child support presumption: by running the support formula twice, once as if each parent were the primary caretaker, subtracting the larger form the smaller sum and having the higher income party pay support to the other.

The two-thirds responsibility assumption was a helpful if imperfect measure of primary care. It provided some guidance, if not clarity. What does 2/3 of responsibility mean? Is it 2/3 of overnight periods? Two-thirds of hours of the 24-hour clock? Or, does it mean 2/3 of waking care time? The shared custody comparison had a simple appeal to it, and it gained great acceptance. Did courts and negotiators by and large accept this approach for cases with less than equal but substantially shared parenting time, such as plans in which one parent cared for children 8 out of 14 overnight periods? For the most part, yes, with some adjustments.

Now come the 2013 CSG. This year’s model perpetuates the 2/3 standard, but without any clarification: a missed opportunity; and one that is compounded as we describe below. It also keeps the 2009 approximately equal parenting model. But beyond that, 2013 CSG expands conscious parenting time calibration in two directions: a new provision for parenting plans with a parent assuming less than 1/3 of parenting responsibilities, and another for child support payors who assume more than a third but less than half of parenting responsibilities.

The first scenario (call it primary care plus) simply says that “the Court may consider an upward adjustment” of the minimum presumptive child support amount. Logical enough: if a payor is not providing a certain minimum assumed responsibility level and corresponding costs, a child support adjustment may be appropriate. But, how shall this be measured? And, without knowing what 2/3 care really means, how shall deviation from it be measured? The failure to clarify what 2/3 parenting means makes this discretionary adjustment murkier.

The second scenario (call it greater but not equal sharing) takes the opposite approach: it is way specific. This, time, CSG begins with the equal parenting approach of calculating child support twice, once as if each parent were the primary caretaker. Then, compare those two, subtract the smaller from the larger and call that the “shared custody” amount. Take the result of the primary care support calculation for the parent who actually will have more than half but less than 2/3 of parenting responsibilities, and average it with the shared parenting model. Confused?

Does it have an economic rationale? And, perhaps more importantly, have we now descended to the place that earlier CSG iterations avoided, by fueling parenting plan negotiations or litigations as shadow battles over which CSG category shall apply?

Is it primary care?

Primary care plus?

Greater but not equal shared parenting?

Equal parenting?

As Massachusetts divorce mediators, we worry that our state’s previously virtuous attempt at keeping clear the divide between child support and substantive co-parenting is eroded to the point of those other states that tie child support to parenting hours, but without their precision. Will this fuel greater suspicion about the desire for more time with kids, or a child-centered need for limits? Will it encourage bad faith parenting negotiations? We need to help parents succeed in spite of what some may perceive as perverse incentives in 2013 CSG.

 

2013 Child Support Guidelines Preview Part 4: Where’d It Go?

Wednesday, August 21, 2013

For the first time in the 3-decade history of Child Support Guidelines, the minimum presumptive amounts for payors with up to $250,000.00 of income is lower at many payor income levels. The Final Report of the Massachusetts Child Support Guidelines Quadrennial Review, of the 2012 Task Force, appointed by former Trial Court Chief Justice Robert M. Mulligan explains.

The report states the 2009 CSG amounts were “somewhat high, especially at middle-and-high income levels” (p. 52) as compared to cited economic studies, and to 5 neighboring states. The task force found that:

Relative to neighboring states, the 2009 Guidelines for more than one child are higher in most, but not all cases. (…) For three children, the 2009 Guidelines amounts are comparable to, or just higher than guidelines amounts in neighboring states in most, but not all, cases and likely not after accounting for the presence and handling of child care costs and health insurance.

None of the above comparisons account for the above average income and expenses in Massachusetts, especially the high costs of necessities such as housing, child care, food and health insurance costs experienced by Massachusetts families. From an economic perspective, Guidelines amounts that are higher than the benchmarks are appropriate due to overall higher incomes and child costs in Massachusetts. (p. 56) (emphasis supplied)

[Interestingly, the task force found significant differences in the child support rates in New England for multiple children. While the 2009 Massachusetts CSG inflated by 20% for a second child, Connecticut (34%) and New Hampshire (37%) weighted the second child more than we did, flattening the disparity overall. This resulted in the 2013 CSG increasing the “add-ons” for multiple children.]

Given that conclusion, what should we make of the general reduction in Massachusetts child support standards? The task force does not suggest that costs of living for families have reduced since 2009: it documents the opposite. Nor have these costs dropped relative to our neighbors. Child support payor interests pressing for reductions had representation on the task force that created the 2009 CSG, but did not in 2012. The task force reported no data about the affordability of 2009 CSG for payors or the existence of excess in the lives of recipients.

Child support payors and payees will naturally view these changes differently. For those with sufficient resources to make alimony an issue, the differences in 2013 CSG may well be mitigated by overall family support calculations. But for many other recipients, they may well see less child support than they might have earlier, or even find reductions coming their way in modification proceedings; while the payor’s load is a bit lighter.

As Massachusetts divorce mediators, we need to understand these changes and be prepared to explain them when pertinent, while dealing with disparate client reactions to the perceived fairness or unfairness of the ongoing evolution of child support.

 

2013 Child Support Guidelines Preview Part 3a: Whose Income Is It, Anyway (Revisted)

Wednesday, August 14, 2013

Could it be that the Probate Court reads our blog?

Just kidding. But a Lawyers Weekly announcement today that there is a new NEW Child Support Guidelines Worksheet discloses a section 3 innovation that now automatically calculates the “excess income” of the parties over $250,000.00 per year. Not only that, it calculates the parties’ respective shares of the excess. It is a subject that we explored in some depth in our July 24, 2013 entry.

It is a convenient short cut for practitioners, clients, courts and divorce mediators, but it also emphasizes that “discretionary” pool of income not absorbed by the presumptive mandatory minimum periodic payment of child support. Could this encourage extension of the mandatory minimums? Maybe.

But it will certainly draw attention to percentages that all Child Support Guidelines users will at least consider in addressing ancillary expenses.

 

Divorce Mediation Mentoring Opportunity: And Public Service, Too

Wednesday, July 31, 2013

Our friends at Mediation Works Incorporated (MWI) in Boston have partnered with the Probation Office of the Norfolk Probate and Family Court to match mediators who are seeking experience and mentorship with high quality and experienced mediators who are staff or other friends of the MWI. The Probate Court receives help in the form of mediated divorce, modification child support, child custody, parenting plan and never-married parent issues cases; and participants gain guidance and hands-on learning.

Josh Hoch is the program creator and MWI’s mediaton services director; and he welcomes inquiries. The link for those interested is www.mwi.org/divorce-mediation-opportunities-and-mentoring.html. Sign up for the program ends September 10th, and space is limited. As divorce mediators ourselves, wish MWI and the Court well in this excellent effort.

 

Post-Divorce Health Insurance in Massachusetts: Time to Close the Self-Insurance Loophole?

Wednesday, June 05, 2013

Many years after Massachusetts created significant rights for divorcing families beyond the federal "COBRA" benefits for coverage of ex-spouses, an important loophole remains that undermines objectives of those statutes. In this entry, we will consider one of the exclusion of "self-insured" company medical plans from the scope of these enumerated rights.

In simple terms, our law states that medical insurers cannot exclude unmarried ex-spouses from an employee's family plan coverage post-divorce; and even if the employee-spouse remarries, the insurer must extend "rider" coverage to the unmarried former husband or wife. The insurance carrier may charge for rider coverage, but it may not surcharge. These benefits significantly exceed the so-called "COBRA” coverage provided by federal statute (36 months of maximum coverage at surcharged rates).

Yet, these benefits are not available to everyone with employment medical coverage in the Commonwealth. That is because these statutes do not apply to so-called “self-insured” medical plans (where the employer assumes the risks of employee medical costs, rather than an insurer), leaving their divorcing employees and their families to the lesser federal COBRA benefits. (Worse still, as we will discuss in a later entry, same sex divorcees have no protection at all, since they do not qualify for COBRA at this time.)

The reason for this unfortunate loophole is that these laws are insurance-based. They fall within the insurance statutes, regulating that industry; and the legislature did not extend these substantive family law rights beyond the insurance statutes. Further, what looks like an insurance plan may not be one. Self-insurers often hire insurance companies to serve as “administrators” of the plan, while the risk of loss remains the employer’s. Thus, while the employee may have what looks like an insurer’s coverage card, the law does not apply.

Meanwhile, since the 2006 Health Reform law here, the policy of the Commonwealth is that all residents have medical insurance. Next year, that will be effective federal law, too. The self-insured loophole is certainly inconsistent with these state and federal policies. Moreover, is it not unreasonable to disproportionately burden divorced persons who are unlucky enough to have a self-insured employer? Under current law, they can obtain private coverage, but it is routinely more expensive and/or less comprehensive than group employment coverage.

If the intent of the insurance laws and health coverage reform is to assist divided families, and to protect taxpayers from funding the insurable medical expenses of split dependents, is there any sustainable policy basis for maintaining this gap in the law? As divorce mediators, we grapple with the impact of the self-insured loophole.

Isn't a legislative fix long overdue?

 

Musing On Alimony: Health Coverage Contradiction

Wednesday, May 29, 2013

The inconsistencies generated by Massachusetts’ alimony "reform" are not only internal. The pre-existing alimony and equitable property division statute, known as "Section 34", provides that if one of the parties has access to health care coverage at reasonable cost, it shall provided for the benefit of the other party. Further, the law cautions, the cost to the covered party, shall not cause a reduction in the sum of alimony paid. This statute was neither amended nor repealed with the onset of the new alimony statute on March 1, 2012.

Enter the new alimony law. Much of it is devoted to the required setting of durational payment limits and regulating maximum sums to be paid, as a percentage of the parties' comparative gross incomes. However, the statute also contains provisions that give judges discretion to "deviate" from these provisions, based upon a consideration of enumerated factors. One of those factors that may justify reduced alimony rights is the cost of medical insurance. In other words, the cost of health coverage can reduce alimony paid.

Will the legislature reconcile this conflict?

As divorce mediators, we can only explain that the conflict exists and let the parties determine for themselves which law to follow and which to disregard.

 

Musing on Massachusetts Alimony: Do "Needs" Still Matter for the “One Percent”?

Wednesday, May 08, 2013

The year-plus-old Massachusetts alimony "reform" statute provides that the court may not include the capital gains, interest and dividend income which derive from property received in divorce equitable asset division in the consideration of alimony rights and obligations. This is of little consequence -- and makes sense -- in most cases, where neither party can reasonably expect to collect income on assets that is enough to affect self-support; especially in a half per cent bank interest environment; and where few people have a critical mass of investable assets to chase stock market returns that would impact the ability to meet current needs.

But, what about cases in which high net worth parties divide large productive estates? In some families, investment returns can meet all reasonable needs, or even both parties’ actual expenses. Before March 1, 2012, this fact alone might have trumped an alimony claim because "need" was a longstanding pillar of alimony law. Even then, need was an elastic term as interpreted by appellate courts, encompassing the specific standard of living of the parties during the marriage. Judges had very broad discretion, to award alimony where the overall equities justified it, or to decline because need was not evident.

While the definition of alimony in the new law expressly includes need, the exclusion of investment income may have the effect of changing that for the “one per cent”.

Consider an extreme set of facts: the parties divide $100 million arising from entrepreneurial success, and the 45 year-old business spouse, out of a job after sale, chooses to take a job with a non-profit employer that pays a salary. A literal reading of the alimony statute would demand that the employee "generally" pay not more than the other spouse’s need, or 30-35% of the difference between the parties' respective gross incomes, but excluding that income produced by their divided assets. In other words, alimony seems mandatory even where no need exists.

If this reading is correct, we suppose that a judge could award $1 of annual alimony and fulfill the statute's mandate, but is that the legislature's intent? As divorce mediators, we look at the economics of every case carefully, but informed clients will know about the law; and we wonder the long-term implications of this statutory provision.

 



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