The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Huxtables and Collaborative Law:

Cliff is a doctor and Clare is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Some of the children live at home but the number is constantly changing because Clare and Cliff keep their doors open to their children.

Clare recently informed Cliff that she has met another lawyer who she feels has more in common with and she wants a divorce. Cliff is shocked but after dealing with the initial shock, he realizes that he does not want the process to be acrimonious or to affect their relationship with the children. He has seen how other doctors have had their families and practices torn apart by drawn out litigation and does not want his children or patients to suffer.

Both Clare and Cliff consult with attorneys and are informed of the possibility of proceeding through mediation, collaborative law or litigation. Although, Cliff is wary of litigation, he is afraid of mitigation because Clare is a lawyer and he feels she would have an advantage. He agrees to hire a lawyer trained in Collaborative Law and requests that Clare does the same.

Cliff's lawyer presents a proposed Collaborative Law agreement in which both Cliff's attorney and Clare's attorney agree not to represent the parties if they change their mind and decide to litigate. Clare sees the value in having two attorneys who are vested in the settlement and would be motivated to avoid litigation.

Clare, Cliff and their attorneys meet ten times over the next twelve months. At times the process seems to be dragging and Cliff becomes very frustrated with the significant difference in values presented by his expert and Clare's expert for both his medical practice and Clare's interest in her law firm. He feels like they are spending too much money on experts and lawyers and are no closer to a settlement.

Clare has become very defensive in the Collaborative Law meetings because Cliff has begun requesting more and more restrictions on the parenting plan with the children, which has become overly complicated in her opinion. She feels that Cliff is trying to punish her for having an affair and not focused on what is best for their children.

Both Clare and Cliff explore litigation with new attorneys but because of the cost already invested with their Collaborative Law attorneys, they agree to give it another try and after two more meetings they are able to reach a Separation Agreement, which is presented to the Court with a Joint Petition for Divorce.

Cliff remains very bitter after the process because of the very high cost spent by both parties on their counsel and the length of time the process took.

COULD THIS HAVE GONE BETTER: Because of Cliff's fears and Clare's legal expertise it is unlikely this process could have gone much better. It is probable that Mediation, if successful, would have been a much quicker and cheaper process. But it is also possible that Mediation would have failed because of the imbalance of power between Cliff and Clare when it comes to their legal knowledge (although financially they are probably on fairly equal footing). Depending on the mediator and their style, Cliff's anger over Clare's affair could also have hampered this process.

Because of the business interests and the difficulty of assigning values to their business when they represent both assets and income, they could have been better served by having one agreed upon business valuator. This could have been done by the Collaborative Law attorneys or through mediation. Separate business valuations can often drive up the cost of a case, whether in Collaborative Law or Litigation.

Don't forget to vote for what the Kramdens should do: leave a comment here.

How much will my Divorce cost?

Every divorce case is different and every case will therefore have different costs. For instance, if you are Tiger Woods your costs could include the loss of endorsement deals, in addition to the more typical costs of attorney's fees, alimony, etc. And that's not even taking into account whether or not you think his poor playing of late is also caused by the stress of his divorce.

To generalize for those of you who are not billionaire celebrities, though, I can tell you that there will still be significant costs to getting divorced and they will include:

1. The Emotional Cost: Divorce is often described as the second most stressful event in a person's life (next to the death of a loved one). We can't ignore that stresses in our life have a cost on our daily productivity, our ability to be optimistic, and our availability to deal with other stressful events. This cost is often best addressed through therapy or family support, and just because it can't be fixed through the legal process doesn't mean it should be ignored.

2. The Financial Cost: The financial price of your divorce has two parts: the cost of splitting up joint finances, and the actual price you will pay to become divorced.

2a. Joint Finances -> Individual Finances: It is a simple fact that it costs more to support two households than one. Whether or not your case warrants child support or alimony, there will still be a cost to dividing up the assets and liabilities that you and your spouse shared during the marriage. Many people will need to learn how to manage their finances, because this is something that their spouse used to do. Even if you helped manage the finances, you will need to consider how your budget will have to change now that you only have access to a portion of the assets you once did. This should include changing how you plan for retirement. All of this begins with a true, accurate and complete Financial Statement. A good Financial Statement is not just a tool for the Court, but can also help you and your attorney figure out how you will meet your budget as a single person.

2b. The Pricetag: And finally, the most obvious cost of divorce is the actual out-of-pocket cost to obtain the Judgment of Divorce. In Massachusetts, the Filing fee for divorce is currently $215 ($200 + $15.00 surcharge), and an additional $5 for the Summons if you filed a Complaint for Divorce instead of a Joint Petition.

In addition to the filing fee, if you hire an attorney their rates and fees can vary greatly. I always recommend that my potential clients interview multiple attorneys. Although cost is certainly one factor, it is my opinion that trust is the most important factor when interviewing an attorney. If you can't trust your attorney, then they won't be able to do their job and you will end up spending more money in the long run anyway.

To learn more about what we charge for Divorce, call Attorney Justin L. Kelsey, Esq. at (508) 655-5980 or click here to schedule a free one-hour consultation.

How long does it take to get Divorced?

The length of time between the beginning of a divorce case and the completion of the case varies greatly. The shortest amount of time it can take you to get divorced is about 5 months, while the longest can be years (my longest case so far was almost 6 years). The variation is mostly due to how you choose to resolve your divorce case, and how much you and your spouse disagree about the division of assets or custody of children.

Variation due to Type of Case: Private Resolution v. Court

You and your spouse can resolve your case by settlement out of court in three primary ways:

1. Direct Negotiation: Either directly with each other, or though counsel, you and your spouse can negotiate a divorce settlement without going to court. If you can reach an agreement on all issues, then you will still have to present a written agreement to the court which details your agreement.
2. Collaborative Divorce: If you cannot negotiate directly, and want to use counsel, the Collaborative Divorce process allows you to negotiate with an assurance that your attorneys are also committed to out-of court settlement (because they agree not to go to court as part of the Collaborative process agreement). The goal of a Collaborative Divorce is also to result in a written agreement which is then presented to the court for approval.
3. Mediation: Mediation is a process that allows you to negotiate directly with your spouse, but still have the assistance of a neutral person to help provide information about the process and referee disputes. The goal of a mediation is also to result in a written agreement which you present to the court for approval.

In all of these scenarios the agreement is filed with a Joint Petition for Divorce under Section 1A of M.G.L. c. 208. The Court will set a date and time for an uncontested divorce hearing. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Total Time to Get Divorced = Time to Settle + Hearing Date Waiting Period (20-30 days) + 120 days.


Court Resolution:

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. The Court has time standards that govern the range of time that your case should take to get from filing to trial. Time standards requires that a case be heard within 14 months, but application of these standards varies and if discovery takes longer than usual then you may not be heard within 14 months.

If the parties are unable to settle their divorce case, then at the end of discovery a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

Total Time to Get Divorced = Time between Complaint for Divorce filed and Settlement or Trial Date + 90 days.


Variation due to the length of the FIGHT:

Whether you settle or go to trial your case will take longer if you make it difficult for the other person to obtain information or if there are complicated issues. When settling out of court you control how quickly your case moves based on how quickly you provide each other with information and how quickly you reach agreements.

The divorce process in court can take much longer because when disagreements arise, you must wait for the court's schedule to allow for resolution. At the very least, absent an emergency, it usually takes at least a few weeks to get into court, even just to deal with one contested issue. Furthermore, court is often delayed by discovery issues that require more time, such as business valuations or custody investigations.

What is the average length of time these issues take?

A simple case, with only some contested issues, will still typically take 8 months to 1 year to settle through court. Through mediation or collaborative divorce, a simple case will usually require 2-3 meetings, which typically takes 2-3 months to resolve.

A complicated case or a case with numerous contested issues will obviously take longer. On average these cases still resolve through court in 1-2 years, but can go longer. Through mediation or collaborative divorce, a complicated case will require more meetings but will still likely be shorter than the court process.

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date.

Therefore, for 90 - 120 days after your agreement is approved you are still officially married.  During that "nisi" period you cannot remarry, and your tax and health insurance status will be as if you are married.  Once the "nisi" period passes you are officially divorced.

During and after the "nisi" period your Agreement will remain in effect unless the Judge or the Agreement directs otherwise.  This means that usually immediately after your hearing you start acting as required by the Agreement.  If you owned any joint property, the Agreement will likely require you to complete certain paperwork during this time period, such as transferring car titles, or signing deeds. In addition, if you agreed to the transfer of any retirement account you should complete any necessary QDROs as soon as possible and present them to the court for approval and then the retirement account plan administrators for implementation.

Once these transfers are complete there usually isn't any further work for your attorneys, but there may still be some to-dos for you to successfully complete your divorce. You should review your Separation Agreement to ensure that you are currently in compliance with and continue to comply with all of your obligations.

To assist you in completing these processes we have provided you with a Closing Checklist below:

☐      Pay final bill for professional services & fees to your attorney.

☐      Retrieve original files from your attorney.

☐      Store file in secure, safe location.

☐      Update Post Office with any new information (change of address or name).

☐      Update Registry of Motor Vehicles with any new information (change of address or name), and file updated titles for any motor vehicle transfers required by Separation Agreement.

☐      Close any joint accounts as required by Separation Agreement.

☐      Notify your accountant and/or financial planner of any account changes due to your divorce, and the change in your marital status.

☐      Notify your employer human resources department of change in marital status as of the Judgment of Divorce absolute date.

☐      Except as required by Separation Agreement, update beneficiary designations and authorized users on any accounts (bank, retirement, life insurance, etc.).

☐      Schedule Consult for updating Estate Plan (previous estate plan likely voided by divorce).

☐      Update all online account passwords (bank, credit card, loan, e-mail, social networking, etc.).

☐      If Property Transfer: File Quitclaim Deed with proper Registry, and obtain time-stamped copy for evidence of recording.

☐      If Name Change: Obtain Certified Copy of Judgment of Divorce Absolute (after 90 days) directly from Court.

☐      If Name Change: Provide Certified Divorce Judgment to Social Security Administration with Form SS-5 .

Other Resources:

Modification - In the event of a change in circumstances you may be entitled to a Modification of your Agreement, for more information visit: www.criticalmassdivorce.com/modification

Contempt – If the other party fails to meet an obligation required by the Agreement you may be entitled to Contempt sanctions, for more info visit: www.criticalmassdivorce.com/contempt

Should your Mediator draft Court Paperwork?

Once an agreement is reached, a mediator who is also an attorney can help the individuals prepare court documents, such as the Separation Agreement. If you need assistance preparing your Financial Statement, or you need advice as to whether an Agreement is in your best interest then you should consult with an individual attorney. Although, a Mediator can help you prepare an Agreement, they cannot provide you with individual legal advice.

Some attorneys do not believe it is appropriate, or "kosher", for attorney/mediators to prepare any court documents because it is too close to the services performed by individual legal counsel. At Kelsey & Trask, P.C. we assist our mediation clients in completing the necessary court forms to ensure that they have been adequately informed about how to successfully present a Joint Petition for Divorce. We believe the goal of a divorce mediation is to reach this successful conclusion and part of that is correctly filling out a Joint Petition for Divorce and the appropriate and required pleadings.

For other opinions on this issue check out the Email Exchange entitled Is it Kosher for an Attorney/Mediator to Draft Court Paperwork for Clients? located on page 22 of the Spring 2010 issue of the Family Mediation Quarterly.

When does 30 + 90 not equal 120? In Divorce Court!

As we covered in a previous post (What happens after my Divorce Agreement is approved by a Judge?), there is a 90-120 day waiting period after your divorce is allowed before it becomes final in Massachusetts. But that 90-120 day waiting period may not be exactly 90-120 days from your settlement date:

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing. A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until at least 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle). If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until at least 90 days after the divorce hearing date.

Since the statute (M.G.L. c. 208 s 21) simply calls for judgments to become final after the "expiration of ninety days", why would it take longer? Because the Court is not open on holidays and weekends, and this can affect the final effective date. In a Joint Petition this can also affect the date the Judgment actually issues as well, since it is thirty days after the hearing, and not the same day as the hearing as in a Complaint for Divorce.

To make sense of all this, it helps to view an example:

Assume that you file a Joint Petition for Divorce and your uncontested hearing date was on April Fools Day, Friday, April 1, 2011 (you may read into the choice of that date whatever you choose to).

Thirty days after April 1, 2011 was Sunday, May 1, 2011 (TIP: if you don't like counting on a calendar use Wolfram Alpha for quick date calculations). Since the court is not open on Sundays, the Judgment of Divorce Nisi in this case would have issued on Monday, May 2, 2011.

Now to calculate the Judgment of Divorce Absolute date, we would count 90 days after May 2, 2011, which results in Sunday, July 31, 2011. Again, the court isn't open on Sunday, so the date of Divorce Absolute shifts to Monday, August 1, 2011.

If you had simply added 120 days to April 1, 2011, you may have thought that your Divorce Absolute date was Saturday, July 30, 2011, when in fact the actual date was Monday, August 1, 2011. While you could still celebrate on the previous Saturday, the actual date does have a legal effect on certain issues (to read more on those issues read our previous post: What is the purpose of the Divorce Nisi waiting period?)

In this example 30 + 90 = 122. Welcome to math in the Divorce court!


Thanks to Robin Chaykin, Esq. of Fraser & Galanopoulos for bringing this discrepancy to our attention!

Post-Divorce Problems: Should my Child Support Change?

In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied.  Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.

However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances.

In order to modify child support you must file a Complaint for Modification or a Joint Petition for Modification.  If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file a Joint Petition for Modification of Child Support.  If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.
To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.

Click here to calculate your Child Support in Massachusetts.

Click here to learn more about filing a Complaint for Modification.

What County do I File my Divorce in?

Map Courtesy of Digital-Topo-Maps.com 

In Massachusetts, the county that you file your Joint Petition for Divorce or your Complaint for Divorce in is controlled by M.G.L. c. 208 s 6.

Assuming that Massachusetts has jurisdiction to hear your case (which we explain in this previous post), you should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county.

To figure out how that standard applies in your case, answer these questions to figure out where you should file:

Question 1:  Do you or your spouse still live in the county where you last lived together?  If Yes, then file in that county.  If no, then continue to Question 2.

Question 2:  Do you both live in Massachusetts?  If Yes, then you can file in either the county where you live, or the county where your spouse lives.  If no, then continue to Question 3.

Question 3:  Does one of you live in Massachusetts?  If Yes, then you can file in the county in Massachusetts where one of you lives.  If No, then you should file in the county that you last lived together in Massachusetts.

If you never lived together in Massachusetts and neither of you lives in Massachusetts now, then review our previous post on jurisdiction because there is a good chance, you cannot file in Massachusetts.

There are Two Exceptions to the above described rules:

Exception 1:  In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.

Exception 2:  In cases where this is a potential conflict of interest, the court having jurisdiction may transfer the action to another county.  For example, if a court employee is getting divorced it would not be fair to them or their spouse to have the case heard in the court where the employee works.

How Long after a Divorce do I have to wait before getting Re-married?

In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

In Massachusetts the length of this waiting period depends on the type of divorce case.

In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. If the parties are unable to settle their divorce case, then a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.