Myths and misinformation often shape people’s understanding of divorce law and their options for settling divorce through mediation or litigation. Sometimes, these misconceptions are simply wrong; other times, a more specific application must be considered. 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: “Before filing for divorce, we need to be living separately.”
Fact: In Massachusetts, there is no requirement for a couple to be living separately in order to file for divorce. The absence of any such restriction has “played well” in the recent recession allowing couples who cannot afford two households to live together even after divorce. (While this is by no means an optimal situation, it certainly does provide an option for those with financial restrictions.)
Fiction: “To move the divorce along, we’ll file for divorce when we enter mediation.”
Fact: Be it in mediation or with lawyers, if you are seeking a 1A No Fault Divorce (non-contested divorce), you cannot file for divorce until you have an agreement to submit to the court. As such, you need to reach a full settlement and submit your signed Separation Agreement and filing papers to the court. You should receive a hearing date within thirty days of your filing. It is at that time that you will present your petition for divorce to the judge for approval.
Fiction: “We don’t need a mediator. No one is contesting this divorce. It will be quick and easy.”
Fact: Quick and easy has little to do with the fact that the divorce is not contested. Actually, the majority of divorces are not contested. The irony is that although even in an uncontested divorce, where neither party objects to divorcing, there may be specific points of contention that have to be resolved. Even if there is not disagreement on major areas of property, support, and custody, the couple should be methodical and thorough in crafting the terms of their Agreement. Issues resolved now represent the most cost-effective route to ensuring the longevity of your agreement, freeing you from a future of misunderstandings and returns to court.
Fiction: “Child Support is calculated through formulas mandated by the State, and applied uniformly to all couples. There is no ability to negotiate the support amount.”
Fact: In Massachusetts, there are Child Support Guidelines, based on a couple’s gross combined income of up to and including $250,000.00 per year. This formula must be calculated for all couples with unemancipated children. However, “Guidelines” are in reality, just “guidelines”, which means that couples may submit a rationale (called “deviation”) posing a modification and/or adjustment of the Guidelines to meet their family’s needs. Moreover, the Guidelines, themselves have variables which may be applied in different ways, thereby yielding different outcomes, not the least of which surrounds the application of annual income in excess of $250,000.00.
The integration of child support and alimony pose another unresolved area of debate, an issue that needs to be tackled in the assignment of support.
All this only illustrates that support determinations are far from definitive or uniform. Perhaps more than any other area, the intricacies surrounding support; what kind, how much, and for how long it should continue, pose thorny questions which are perhaps the hardest of all queries asked of divorcing couples. Couples who settle for agreements based on a dollar figure without consideration of changes over time are presenting an invitation for future returns to court.
Fiction: “Wait until the judge hears what he did; justice will surely be served.”
Fact: Conduct is only one of the seventeen factors for determining the division of property and, when used as a rationale for a disproportionate division, requires a trial to prove fault. A very small percentage of divorces are actually tried; even when individuals feel wronged and even when they feel they will benefit from waging a legal battle, the costs in terms of time and money dissuade most from pursuing this route. Then, too, of the few that follow this course, most do not reap the benefits they anticipated. Some even emerge worse off than if they had not sought “justice” from the court.