Myths and misinformation often shape people’s understanding of divorce law and their options for reaching a settlement through mediation or litigation. Sometimes, these misconceptions are simply wrong; other times, a more specific application must be considered. Since we believe that 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, we offer this compilation of some common myths.
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: “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.
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: “Inheritances are excluded from consideration in the division of property.”
Fact: There is perhaps no area that invites more confusion and lack of clarity than that surrounding inheritance. 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 grayer than gray. 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: “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 poses 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, including what kind, how much, and for how long, 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: “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.
Fiction: “Wait until the judge hears what he did; justice will surely be served.”
Fact: Conduct is only one of the eighteen 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.
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 assets, which has no relationship to which party spearheads the divorce action.
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 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.