Most divorcing couples do not enter mediation familiar with divorce law. This does not mean that they have not searched the Internet to learn about the divorcing process or that they have not been speaking to friends and family about divorce. Quite to the contrary: individuals embarking on mediation often bring with them a wide assortment of conceptions and beliefs, learned by browsing social media or speaking to divorced friends or family members or more basically emanating from their own sense of justice and fairness. When they learn that individual, even shared, beliefs may run counter to Massachusetts’ law, they may be surprised, even angry. Yet, knowledge is important and necessary for couples to reach a settlement. Indeed an understanding of where the law is black and white and where it is kind of gray, thereby allowing for flexibility and even deviation, is crucial for shaping an agreement that fits the family’s needs and will be acceptable to the court. This first part of a two-part article is intended to respond to common misconceptions of the divorce process with clarification and factual information.
STATEMENT: Now that our children are going to college, we have decided to finally get divorced. We have discussed the division of assets and agree on everything. I have heard that the judge will accept the division if the divorce is uncontested.
RESPONSE: The fact that the divorce is uncontested does not mean that the judge will accept whatever “deal” you and your spouse present for approval. The following 18 factors are to be considered by the judge in assessing if the parties have structured an equitable division of assets:
Length of the marriage
Conduct of the parties during the marriage
Age of the parties
Health of the parties
Station of the parties (e.g., middle class)
Occupation of the parties
Amount and sources of income
Employability Estate (assets) of the parties
Liabilities of each of the parties
Needs of each part
Opportunity of each party for future acquisition of capital assets
Opportunity of each party for future acquisition of income
Contribution of each party in the acquisition, preservation, or appreciation in value of their respective estates
Contribution of each party as homemaker
Needs of the children
The amount and duration of alimony, if any
Understandably this listing of factors may seem confusing and, in parts, perhaps not relevant to an individual couple. It is the responsibility of the mediator to discuss this listing with clients and explain each factor and its relevance or lack of relevance to them as individuals and as a couple. In working with a couple to structure their own division of assets, it is especially important to identify the rational underlying their decisions. It is precisely this presentation to the court that helps the judge to focus on the reasoning behind their decision-making. In addition, in the years to come, when either spouse, or both, may have forgotten why they reached certain decisions, they can return to this document as a kind of written history of their thoughts.
STATEMENT: Some of our assets do not need much discussion. We each have our own business and our own retirement funds. There is nothing to discuss. It is what it is.
RESPONSE: Much discussion may not be needed but values are. It is easy, and perhaps okay, to say that we will each keep our own business and our own retirement funds. The truth, however, is that the division proposed may be fair and it may not be. Let’s say that both parties agree to each one keeping his or her own business and retirement funds. However, let us also say that both the business and the retirement holdings were acquired during the marriage. To learn the value of each one’s holdings is needed to assess the equitability of this proposed division. Marital holdings do not have to be divided to reach an agreement. There can be trade offs with other assets, delayed payments or a myriad of other ways to reach an equitable deal, but, and the but is important, values do need to be revealed in order to back up proposals.
STATEMENT: During our marriage we never shared income or assets; we kept everything separately and equally shared household expenses. Now that we are getting divorced, this should really be easy. We each keep what is ours.
RESPONSE: Maybe yes and maybe no. Did the party have a prenuptial agreement? How long were they married? Did they have equivalent incomes? Will each one emerge from the divorce with a fair share of marital assets (whether held separately or not)? The story of the marriage in a sense needs to be expanded. How and why did they keep everything separately? Now that they are learning how much each one has acquired during the marriage, do they think any reconciliation is needed?
In short, there are questions that need to be asked and information shared before a settlement can be reached. Mediation provides the forum for tackling misconceptions and misunderstandings about divorce in a safe and productive forum. Neither party should feel that his/her thoughts, proposals, or understandings are being ignored. It is important for individuals to understand the law and its position on the division of assets, but it is also important and necessary for the couple to think through their own beliefs and fashion an agreement that can be viewed by both parties as fair and workable. It is the mediator’s job to help individuals expand their knowledge base and to think of ways to mold to fit their needs and future plans.