Divorce Mediation Blog

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

Sunday, October 15, 2017

Levine Dispute Resolution Center - Guest Writer John Fiske

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.

The article helped to set the stage for the robust growth of alternative dispute resolution in many forms that we now enjoy, including our Supreme Judicial Court Uniform Rules of Dispute Resolution and the flowering of family mediation through organizations, training, literature and even an occasional Hollywood movie. But at the time they wrote, much of divorce law was in the dark. Probate and family court judges had wide discretion and little guidance, and unpredictable court results could depend on who your judge was and other seemingly capricious factors.

Light Dawns

So where are we now? By 2017 divorce law has become far more clear and often even predictable. The single most vital contribution to this framework for helping couples discuss and define their own divorce terms are the federally required Child Support Guidelines (CSG). One can only imagine the thousands of couples whose divorces have been simplified by the CSG. In my early days of mediation about 6 months after the article appeared, I was constantly asked, “What will my child support be?” and Mr. Hem met Ms. Haw: “Well, it depends. It depends on what county you are in, or who the judge is,” etcetc. The law shed little light on the subject, and any shadows shifted or conflicted.

A glimmer of light appeared in October, 1978 when Probate and Family Court Judge Edward Ginsburg wrote an article, “Predictability and Consistency in Alimony and Child Support Orders,” in the Boston Bar Journal. He proposed a simple formula based on the income of the payor; that light helped to settle many cases. In one mediation the husband said, “I think 33% of my income is too much for me to pay my wife but I am willing as long as I know I am not the only guy in Middlesex County doing it.”

As more lights appeared, the shadows diminished.

The CSG worksheet now allows couples to consult their computer and find the answer to their question in minutes.

The parents may not agree, but they have a framework for their negotiation. For example, mediating couples can ask, “Does the CSG amount make sense for us?” and they can compare the suggested amount to their actual living expenses to make an informed decision in the light of what a court would do.

The Alimony Reform Act of 2011 sheds more light on various alimony questions, making it clear that the law allows short term alimony, proposing a simple formula for calculating the amount and even provides time limits. For example, the shadow of cohabitation is specifically illuminated: couples can choose from a menu of alternatives from revision or termination of alimony to suspension during the cohabitation period. The appellate courts have been conscientious in taking appeals to clarify various provisions in the Act. For example, in Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) the Appeals Court held that a judge cannot enter an alimony order for a fixed percentage of the payor’s income in the future because this “self-modifying” order is not supported by findings, etc. But nothing prevents couples from entering separation agreements providing for such flexible arrangements and courts from approving these agreements. In George v. George, 476 Mass. 65 (2016) the Supreme Judicial Court said temporary alimony does not affect the length of general term alimony obligations. Similarly, questions about when it is appropriate to attribute income to either party have been clarified in Emery v. Sturtevant, 88 Mass. App. Ct. 1118 (2017), thereby limiting one of the few remaining alimony and child support issues for lawyers to argue about.

Pesky question of property division have been similarly clarified by case law, such as the role of property inherited before, during or after the marriage and whether family trusts are marital property to be divided or mere expectancies which may or may not occur. Lauricella v. Lauricella, 409 Mass. 211 (1991) and Pfaffenstiehl v. Pfaffenstiehl, 475 Mass. 105 (2016).

Effects of Light

One effect of this evolving clarity is to change the question. Instead of arguing over what a court would do if the case were tried, the question is whether the court will approve the agreement the clients have reached. For clients interested in private ordering, that is the real concern. How long alimony or child support should last is already defined, and parties can agree to something different now that they can make an informed decision. In a mediation this July the husband with $80,000 of income said he thought they should make their incomes equal though his wife had no income, and she agreed. They knew that the law would only require him to pay one third of the difference in their incomes: they each knew what they were getting and they each knew what they were giving up. They felt this agreement to be fair and right, and their only question was whether the court would approve it.

It remains important for couples to know what the light of the law is, not to tell them what to do but to give them some objective criteria by which to judge their own solution. In Getting to Yes, Fisher and Ury recommend four principles of negotiation ending with consideration of some objective criteria. Houghton Mifflin Company (1981) p. 84. Here the illuminating law can be of great help, not to dictate but to inform their own solution.

“’I am half sick of shadows,’ said the Lady of Shalott” in the poem by Tennyson, but her facing reality had unhappy consequences. While I am glad to see the law moving us out of the shadows, we can hope for better informed settlements of divorces and other family disputes. Parties can know the norms and make their own choices when and how to adapt to them. Lawyers can have more confidence in predicting whether negotiated and mediated agreements will be approved by the courts, and can inform clients what they are gaining and what they are giving up in reaching their own solutions. As Superior Court Justice Douglas H. Wilkins pointed out in his letter to Lawyers Weekly on July 17, 2017, new court rules provide further support for early mediation: the path to a desired result is not only illuminated but can be significantly shortened by helping lawyers, mediators and clients to discuss appropriate settlements from the very beginning of a case. Children benefit from their parents reducing conflict. We can spare the courts unnecessary litigation, and sleep better nights.

John A. Fiske is of counsel at Healy, Fiske, Richmond & Matthew, a Cambridge firm concentrating in family law and mediation since 1979.


Massachusetts Alimony and Child Support: Much Ado About Double Counting – Part 2

Wednesday, December 11, 2013

Previously, we blogged about the conflict between the Massachusetts alimony law and our Child Support Guidelines, and the now raging chicken-and-egg question: which is calculated first?

We attended three events in late 2013 where this was addressed: the MBA Family Law Conference Annual Conference, the Probate and Family Inn of Court November dinner meeting, and most recently, the Massachusetts Council on Family Mediation Institute on Nov. 22. What we know for sure is that judges and lawyers are debating two distinct views:

  • computing child support first (and in most cases eliminating alimony because there is less than $250,000.00 of annual family income to apply), and then alimony if any income remains from which child support has not already been taken; or
  • calculating alimony first, and applying the re-allocated income to the Child Support Guidelines formula, to determine the presumptive minimum child support sum.

As we have said here before, this conflict does not trouble us as divorce mediators, because the differing approaches encourage parties to look at a broader spectrum of possible results that meet their needs, and not simply flop into a formula. We believe that neither approach mandates a particular result or licenses abusive orders. To that, we might add that the generally reduced 2013 Child Support Guidelines amounts may compel a more flexible process to assist in finding a fair and sustainable result. Time and again, our mediation clients (all of whom have lawyers) have taught us that the truth often lies somewhere in between.

The arguments, essentially, are these:

Anti-Double Counting

  1. Statute trumps rule, therefore the alimony law’s ban on double counting of available dollars for two kinds of support negates the court’s discretion to follow the Child Support Guidelines’ permission to calculate alimony first; and that
  2. The Child Support Guidelines themselves define income by a laundry list that includes alimony from a prior spouse but does not mention alimony from a current one.

Pro-Double Counting

  1. The rules of bridge don’t apply because the double counting prohibition of the alimony law does not exist in the Child Support Guidelines, and sometimes it’s necessary and justifiable;
  2. The Child Support Guidelines’ definition of income is not exhaustive but is inclusive and expressly not limited to the laundry list provided; and that
  3. The 2013 Child Support Guidelines punish dependents by their reduced yield (except in very few, very low income cases).

It would be silly to deny that the alimony law and Child Support Guidelines conflict at some level; but, the conflict is not irreconcilable. As we blogged previously, the Child Support Guidelines don’t require that alimony be calculated first. They permit consideration of that approach. And, historic law of the purposes and parameters of “fair and equitable” support are not checked at the door of either construct. Considering alimony or child support first is a process, not a result. If one or the other view leads to an insufficient or a confiscatory result, the product of either is defective.

On the income definition side of the argument, it is true that the Child Support Guidelines expressly allow alimony received from a prior spouse to be tapped as a source of child support for a current child. Some argue that this means that alimony from a current spouse may not be used to fund child support, and that by computing alimony first, that is exactly what happens. To us, this seems circular.

Both alimony and child support are tools to re-allocate external income, such as wages,within the family. Until alimony has actually been ordered, there is no alimony income. Until child support is set, there is no child support. Therefore, when one is setting alimony and child support simultaneously, there can be no impermissible double count: there are merely two different ways to search for a sufficient and non-confiscatory order.

There is nothing in the alimony law that says that alimony must cover 30-35% of the difference in the spouses’ incomes. Alimony generally may not exceed that range. Similarly, the court is not required to apply the Child Support Guidelines resulting presumptive order. It may order less or more for good reasons. Taken together, the alimony law and the Child Support Guidelines can be used in tandem to fuel a process of inquiry that leads to a fair and tax-efficient result.

The legislature chose one way to address what they viewed as a potential for an impermissible double count. The Trial Court chose another for child support. Both bodies were authorized by law to act as they did. There’s no substitute for good lawyering, negotiating, mediating and judging. Default to formulas is easy and in many cases sufficient: not all by a long shot.

As we noted earlier, the new CSG include the Good, the Bad and the Huh? We don’t view this particular provision as fatal.

Of course, we reserve the right our change our minds!


Massachusetts Alimony Reform and Divorce Mediation: Is It Information or Legal Advice?

Friday, November 15, 2013

Alimony reform, effective March 1, 2012, created a number of important time sensitivities that did not exist previously in the spousal support law of Massachusetts. Addressing these timing issues in divorce mediation raises important challenges for the practitioner, one of which is how to find a balance among three imperatives: mediator impartiality, informed client decision-making and avoidance of giving legal advice. Here, we ask: when we "inform" clients about particulars of the alimony statute that carry timing perils or opportunities, are we giving information or legal advice?

Why does this question matter? It certainly matters to attorney mediators whose licensure is subject to Supreme Judicial Court's Mass. Uniform Rules on Dispute Resolution 9(c)(iv), which permits lawyer to" ... use his or her knowledge to inform..." but "... shall not provide legal advice... in connection with the dispute resolution process!' This rule is consistent with the American Bar Association's Model Standards of Practice for Family and DivorceMediation, Standard VI (16) (" ...a mediator may provide information that the mediator is qualified by training and experience to provide. (But' Mlle mediator shall not provide. .legal advice."

Meanwhile, for all mediators, including non-lawyers, Standard VI(13) of the Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Family and Divorce Mediation echoes the ABA standard; and the MCFM Standard of Practice 4(C) falls just short of prohibition, stating that "The mediator may give general information that will help the parties make their decision, but shall not recommend specific course of action regardless of professional background.' In short, whether or not individual theorists or mediators agree, the prevailing consensus rules out legal advice, across the board. (For non-lawyers this implicates the profound challenges posed by the unauthorized practice of law dilemma discussed by David A. Hoffman in his piece in the Spring 2013 issue (Vol. 12, No. 2, p.22) of Family Mediation Quarterly. That issue is outside the scope of this article.)

Returning to the alimony information/advice question, it arises in the broader context as we addressed in the Spring 2013 issue (Vol. 12, No. 2, p. 1) of Family Mediation Quarterly: a collection of rules and statutes that trigger rights, obligations and protections that accompany the start of court actions involving family law disputes. These range from automatic financial retraining orders, to mandatory financial disclosure ,retroactive modification and statutory interest on contempt judgments. For the most part: they are procedural; where substantive, they are peripheral if nonetheless important.

Alimony 'reform" places central, substantive alimony rights and exposure squarely in play. Simply put, when a divorce complaint is filed and served matters in numerous potential ways. These timing issues are ncw, important and help illustrate this important mediation practice issue; while bearing fully in mind that principles discussed apply far more broadly.

In relevant part, the new alimony statute introduces time limits for alimony in all marriages of fewer than 20 years. "Marital" months are tabulated, and for each 5 years, a progressively higher percentage (50% - 80%) determines the maximum alimony term. The law also provides two new kinds of short term or lump sum alimony that cannot be extended for any reason, but only in marriages that are shorter than 5 years' duration. Critically, the length of marriage is confined to the number of months elapsed from the date of marriage to the date of service of a summons and complaint for divorce.

In summary, the decision of a party to file and serve a complaint for divorce, or to not do so, can alter the substantive course of the mediating parties' divorce by:

  1. supporting one party's claim fin- a time limited and final alimony duration, Or not;
  2. increasing the length of maximum general term alimony both by a fraction of each month that passes before service, and if those months complete five, ten and fifteen years of marriage, by increasing that fraction from 1/2, to 3/5 and 4/5 respectively, or conversely, stopping the "alimony dock"; and
  3. enabling an expected alimony recipient to request unlimited duration alimony for 20+ year marriages, or otherwise being limited to 80% of the marriage's length.

If parties are actively working with counsel during mediation, we may infer that they are aware, or should be, of these basic legal facts. The physical presence of counsel in a mediation gession may mitigate our uncertainty because first, there is opportunity to inquire of counsel or to hear counsel's comments on point; and second, because the attorney's presence serves to delineate roles in the clients' minds as in: "my lawyer is here to advise me, the mediator to mediate".

[A]s mediators, we are all about people having sufficient information to make their decisions knowing and voluntary.

As partly noted by David A. Hoffman's recent piece (above), according to one pertinent authority, the Commonwealth of Virginia's Unauthorized Practice of Law standards:

    Mediators may make statements that are declarative of the state of the law on a given legal topic and these statements are generally permissible.


    Mediators may rely on their training, experience, or even their own analysis of statutes or case law when making these declarations...

    [A] permissible statement declarative of the law in one context may constitute unethical.., legal advice in another. Mediators must carefully consider whether, under the totality of the circumstances, a law-related statement is likely to have the effect of predicting a specific resolution of a legal issue or of directing the actions of the parties... [S]tatements made by a mediator in the presence of the disputants' attorneys are less likely to influence or direct their actions than if made outside of the attorneys' presence.

Even if counsel is not present, and a client volunteers awareness of the alimony rules in a session, the mediator's response can be sensitive to these cautions by being fairly straightforward. Confirm what is accurate; correct what is not; fairly explain the internal interaction among various statutory provisions, and impact with prior, but still "good" law, and that there is much to be clarified over time by interpretive case law. If we do not urge a result, if we try EO refrain from predictions and be sure to give fair balance to the various factors involved, we should not trip the wire between information and advice. As a consequence, we should avoid the appearance of introducing impermissible bias by urging a particular result that one party may not fully embrace.

What is more problematic is the scenario when the parties exhibit no clue about this legal framework or that it even exists; or they have only vague or misinformed ideas. Yet we know the basic facts of the marriage, i.e., the date of marriage and the presence or absence of service. We are thus aware that one statutory milestone or another is approaching. Do we initiate or cause an awareness of the statute? If so,are we informing or advising?

As cautioned above,it depends. For every rule of substantive law, one party or the other may stand to gain, and the other less so. So, when we bring a point of law to the clients' attention we risk that it be construed as legal advice, especially if the panics do not have lawyers in attendance; because that piece of information may change the way the panics' think about the issue at hand, and thus, may indirectly push the outcome in one direction or another.

But, does this make it advice, and as advice, does it subvert mediator impartiality? Without parsing the way in which the information is. framed and stated (which can easily shift information into advice), and assuming a neutral statement of law, we believe not. After all, as mediators, we arc all about people having sufficient information to make their decisions knowing and voluntary. With profound rights and obligations at stake, how can ignorance of the basic rules advance these twin goals?

As importantly, may not silence, like carefully provided information, create an equal if opposite impact on the parties' negotiation? Whether informing or choosing to remain mute, the mediator is (hopefully) making a conscious decision, and either choice may advantage one client or the other in their negotiations. It. is unreasonable, in our view, to condemn the choice to inform as legal advice, with resulting exposure to the claim of partiality, while excusing silence from either.

Plainly, we need to inform clients. We must do so with care; and with high consciousness of the neutrality with which we do it. As one of our pioneering colleagues, John Fiske, says frequently, there is opportunity and risk in everything that mediators do. If we have a practice bias, it is in favor of more relevant information rather than less. Figuring out how to thread the needk with useful information input that is neither advice nor improperly biasing is one of the joyful challenges that we face every day in helping couples resolve their family law matters without litigation; and we embrace it. 

Acknowledgement: Thanks to colleague and friend David A. Hoffman, Esquire, of the Boston Law Collaborative, for focusing us on the Commonwealth of Virginia UPI_ Guidelines, for teaching and talking with us about thc information-legal advice frontier.

William M. Levine, Esq. and Hon. E. Chouteau Levine (Ret.) are principals of Levine Dispute Resolution Center, LI.0 in Westwood and Northhampton, MA. Bill may be reached at wmlevine@levinedisputeresolution.com; and Chouteau may be reached at eclevine@levinedisputeresolution.corn.


ALIMONY, PALIMONY AND (NOW) PREGLIMONY The past, present and future of support obligations in Family Law

Thursday, November 01, 2012

By Madeline Marzano-Lesnevich.

Former spouses may receive alimony; former partners may receive palimony; children indirectly receive child support; and now unborn children and their mothers may be able to receive preglimony. “Preglimony?” you ask. Is this even a word, perhaps a spoonerism or mash-up of some kind? If you Google it, the search engine will auto-complete the suffix of the word for you if you make it to p-r-e-g-l, so someone must have searched for it before you did.

Preglimony is the term that is being given to the prospect of support being paid to mothers for the costs associated with the unborn children they are presently carrying. As a comparison, these are the type of expenses that are normally paid voluntarily by adoptive parents, and often paid to a woman in cases of surrogacy by couples or individuals who are unable to have children. The unsettled issue of preglimony pertains only to children born to unmarried couples because when a child is born during a marriage, the husband is presumed to be the biological father of the child unless and until a paternity test demonstrates otherwise. The husband’s financial obligations to the mother (i.e., his wife) and to the unborn child commence automatically based upon the fact of the marriage itself. In contrast, an unmarried mother does not yet have an automatic right to seek contribution for prenatal costs from the putative father.

Furthermore, medical insurance coverage generally cannot extend to another person unless he or she is related by blood, or through marriage or some other legally recognized form of partnership, or unless the obligation is ordered by a court. Therein lies a potential benefit for a newborn child, but whether an unborn child can similarly benefit remains to be debated and resolved.

Through the further development of technology, a paternity test no longer requires a child to be born to confirm the father of the child. A prenatal blood test now allows a woman’s blood to be drawn during the pendency of her pregnancy to genetically link the father to the child. As a result, there is a growing dialogue that suggests fathers should contribute to the cost of the expenses incurred before birth once confirmed to be the father of the unborn child. At present a father’s obligation to contribute to the support of a child only begins at birth in most non-dissolution matters. This raises complex issues that are not yet being addressed by the New Jersey courts.

I anticipate that there will be much debate about which prenatal costs are necessary and reasonably incurred by a mother, when and if she seeks financial contribution from the father, and whether he was appropriately consulted before they were incurred. These prenatal costs would ostensibly include gynecological visits, Lamaze classes, ultrasound expenses and blood tests. However, the question remains whether this would also require the mother to limit her prenatal expenses to those covered by insurance, or for a judge to determine whether a C-section or natural birth was more cost-effective. Further, preglimony may function as a catalyst to the premature termination of relationships due to the pecuniary interests that may become viable, which were not previously made available by the courts. While these types of disputes are likely to occur if in fact preglimony becomes a viable and codified claim in New Jersey, there is a more far-reaching constitutional issue that may also arise from this nebulous financial obligation.

If a father has an obligation to contribute to the cost of prenatal care, he would likely also be obligated to contribute to the cost of an abortion if the mother chooses that option. In turn, this raises the novel consideration that if a father has an obligation to contribute to the cost of the abortion, he may also have a say in its implementation. While the holding of Roe v. Wade may have confirmed a woman’s right to privacy under the due process clause of the 14th Amendment, it did not contemplate that that the pro-life and pro-choice camps could be further fractured into determining when joint legal custody rights really begin. Given that many parents already have a difficult time co-parenting their children with allegations of parental alienation and child abduction unfortunately becoming far too common place, it goes without saying that litigation surrounding abortion, if it ceased to be an individual’s right, would be inevitable. Either way, the legislature will have to determine whether a woman’s constitutional right to choose could be jeopardized by compelling a father’s contribution to her prenatal medical expenses. Further, they will need to consider how the suppression of that right is being quantified and if that potential burden would be outweighed by the benefit of this additional financial obligation.

It will further raise the issue in determining the parties’ respective percentage obligations to contribute to these prenatal costs. In turn, fathers will likely want to know when mothers choose to begin their maternity leave, and whether there should be income imputed to them to offset a potential lack of income. Further, it may incentivize a father’s contribution to these costs in order to ensure that the child’s surname contains his own, at least before or after a hyphen. This will likely increase litigation as complaints for custody and support will be filed approximately six to eight months earlier than they are now. Normally, claims for child support can only be sought retroactive from when the original application is filed, and normally require there to be written notice given to the father.  It will be interesting to see how stringently these two requirements will be applied to the issue of preglimony in the context of unplanned pregnancies.

Moreover, the legal battles that could and would likely arise from the advent of preglimony are numerous. For example, could a father have a say in when and if a pregnant mother could fly and under which circumstances this would be in the best interest of the unborn child? Could a father seek reimbursement for prenatal costs he has paid if a miscarriage occurs due to the fault of a mother involved in a risky behavior? Further, fathers could be permitted to inquire about and potentially limit an expecting mother’s diet and activity in invasive ways never before deemed permissible by the court system. The intricacies of this form of support could further polarize the already too frequent denizens of the Family Part courtrooms of New Jersey.

It has been suggested in other articles that the prospect of these costs would somehow function as a deterrent to unprotected sex. If the prospect of contributing to the cost of unreimbursed medical expenses, extracurricular activities and college expenses on top of periodic child support is an insufficient financial deterrent, I would suggest that the additional trimester or two of support would not make much of a difference in increasing the likelihood of partners practicing safe sex.

The issue of preglimony gives rise to the potential for far reaching and multifaceted consequences in the ever evolving world of family law in New Jersey. On one hand, some individuals may argue that preglimony will overcomplicate and inflame the already litigious nature of our society, and that its limited financial value to a mother will be outweighed by her resultant loss of privacy. On the other hand, some may argue that the financial burden of a pregnancy should not be the mother’s sole responsibility, and that whether a woman is married or unmarried should not alter a father’s financial obligation to his child. It remains to be seen whether the legislature shall give credence to the claim of preglimony, the way that it presently does with alimony and child support. Either way the issue shall further inform the ongoing dialogue about reproductive equality in this country.

Originally printed in the New Jersey Law Journal, Vol. 209, No. 12, on September 17, 2012


A Gathering of Family Dispute Mediators

Thursday, October 11, 2012

We recently attended the first ever, annual conference of the Academy of Professional Family Mediators (APFM), Falmouth, MA. Formally in existence for fewer than six months, the APFM attracted some 250 family mediators from around the country and the world, to share techniques, outlooks and aspirations, over the span of four (4) days.

Among the remarkable aspects of this gathering of mediators was that the commonality of devotion to efficient and voluntary facilitative processes yielded a showcase of diversity in techniques and approaches. The group focused on the giants of the mediation movement, their previous and prodigious contributions, as well as the present and future evolution of the field. Clearly, this young field of discipline has matured beyond its years. Hopefully, APFM will serve its constituents and, in turn, our clients for many years to come. We look forward to many future conferences over the years.


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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