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This Month's Article

Divorce Mediation Myths and Misconceptions, Part II

August 1, 2017                                                                                     Written by CMDR Staff

 

Complicated asset holdings? Possible Inheritance?  Fighting so much you could not imagine mediation could work?  …. Think again.

If you get the straight scoop about mediation, your divorce may just be less expensive, less contentious and more family–friendly than you think.  No matter what the source of the myth, separating fact from fiction will better enable you to make a decision about whether divorce mediation is the right choice for you and your spouse. 

 

 

Fiction:           “Inheritances are excluded from consideration in the division of property.”

 

      Fact:                There is perhaps no portion of the divorce process (division of assets) that invites more confusion and lack of clarity than that surrounding inheritances.  One judge did try to impose order in this chaotic arena by devising a formula based on years of marriage.  The longer you were married, the greater the percentage you received of the other party’s inheritance.  However, few of the other jurists agreed to a formulaic application, leaving the principles surrounding the division of inheritance greyer than grey.  Factors such as intermingling inherited money with marital holdings, using inherited money to fund marital expenses, as well as when in the marriage the money was received are all key considerations with no clear-cut measure of how to integrate and apply such factors.

                                The division of inheritances and of assets acquired prior to the marriage, is a determination best decided by the couple.

 

 

Fiction:     “Mediation is only for couples who communicate well.”

Fact:              Mediation is undeniably a process based on communication.  However, it is the mediator’s responsibility to facilitate communication between spouses.  It is the mediator’s responsibility to help each spouse express his and her needs, concerns, and priorities and to enter into a process built on creative problem-solving.  The end goal is for the couple, with the mediator’s knowledge, guidance, and skill, to structure a settlement that maximizes resources, balances needs, and proves workable in the present and future.

                Entering mediation with good communication skills is certainly helpful but rarely essential to the success of the mediation.  Ironically, even those who have a history of communicating effectively may have trouble knowing and expressing their needs when facing divorce.  These couples, too require guidance and facilitation in grappling with thoughts and feelings in this confusing time of their lives.

 

 

Fiction:           “If she wants the divorce, she will have to leave the house.”

        Fact:           It does not follow that the person who asks for the divorce is one who has to leave the marital home.  Indeed, the division of property is not determined by who makes the decision to divorce.  Instead, the court uses eighteen factors to reach an equitable division of property which has no relationship to which party spearheads the divorce action.

 

 

Fiction:           “We need to get a legal separation if we want to live separately.”

    Fact:            In Massachusetts, there is no such decree as a “legal separation”.  Some couples file temporary support and custody orders that may provide, among other provisions, interim terms for the amount of moneys paid by one party to the other, liability for rent/mortgage, and health insurance, as well as interim arrangements for a parenting schedule.

                               Other couples seek the help of a mediator or even work out terms between themselves, agreeing how to handle monthly bills and new expenses that arise when living separately, as well as devising custodial arrangements.

 

Fiction:     “If I enter mediation, I cannot have legal counsel.”

 

Fact:    NO, it is never true that individuals who elect to mediate renounce their right to have legal counsel.

             It is true that people in mediation use legal services in different ways.  Some individuals are referred to mediation by their lawyers, and may have counsel available to them throughout the process to answer questions and/or to review proposals.  Then there are others who seek legal counsel during the mediation process, and still others who wait until the end of the process, using their attorney to review the terms of their agreement prior to submission of the document for judicial approval.  Then, too, others elect not to use legal services at all.  All are acceptable methods.

            The mediation population is not in fact all that different from other divorcing litigants in their use of legal services, varying from those who rely heavily on legal counsel for settlement to the increasingly growing segment of the divorcing population who mount cases pro se.

 

 

Fiction:     “If I get divorced, I will lose access to my spouse’s health insurance.”

Fact:    This is true if your spouse is employed by a company that is self-insured (e.g., IBM, Microsoft).  Employers with self-funded health plans are exempt from Massachusetts law which requires employers to offer access to ex-spouses for continued group health coverage.  If, on the other hand, the employer is not self-funded, the ex-spouse can continue coverage after divorce provided it is clearly specified in the parties’ Agreement.

                        



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