FAQs

No.  You have an equitable right to the marital home, whether you are currently living there or not.  Your physical location is not relevant. However, if you wish to retain the marital home as part of the division of assets, it is an easier task to accomplish if you are still living there.  A party who moves out may find it difficult to persuade the court, if the issue comes down to who keeps the house. However, if you do not wish to remain living in the house after divorce, moving out does not waive your right to your share of the equity in the marital home, for a buyout.

If there are children involved, it is preferable to establish a temporary parenting schedule in place before you move out, if at all possible, such that your leaving is not construed to be leaving the children behind, and so that you continue to have control over when you have parenting time with your children.   If the parties cannot agree on a temporary parenting schedule before physical separation into two households, a motion for temporary orders may be filed, and the issue will be addressed with the Court. Unless there are significant safety concerns for the welfare of the children, the Courts encourage parenting time with both parents as much as possible.   It is best to consult with counsel before moving out, if possible.

If there are children involved, a child support order must be addressed. If children are not involved, and the parties are married, the issue may be one of alimony. If the circumstances are such that your spouse is not required to pay either child support or alimony to you, the parties will need to address who is best able to maintain the marital home. If you are not entitled to support from your spouse, and cannot handle the mortgage payments on your own, it is not likely that you will be awarded the house, and you would be better served receiving a buyout of the equity in the marital home, to relocate to a less expensive home. If the parties have agreed to sell the home and share the proceeds, both parties must discuss how they will each contribute to the mortgage until the house is sold and the mortgage is paid off. A consultation with counsel will assist you to understand your options relative to division and maintenance of the marital home.

Not without a court order.  However, there are circumstances where a party can request that the court order the other party to vacate the marital home, under the following circumstances: 1) application for a restraining order, where the court must find that the party seeking the restraining order has demonstrated a fear of imminent bodily harm by the other party or 2) a motion to vacate the marital home, where the court must make specific findings that the health, safety and welfare of the party seeking the order would be harmed if the court did not order the other party to vacate.  It is the moving party’s burden to demonstrate this standard, and the court may only order a party to vacate under these circumstances for a maximum of 90 days, and further hearing is required to extend such an order.

If the parties cannot agree on how to divide the marital home (either one party retains the home and buys out the other party’s equitable share, or the parties agree to sell the home) then the case will go to trial and the judge will determine what is to happen with the home.  The court will decide whether one spouse is to retain and buy out the other spouse, or whether the house is to be sold.

Yes, your retirement and pension are marital assets and subject to division.  By statute, M.G.L. c. 208, section 34, the court considers seventeen separate factors in determining how to divide the marital assets, including but not limited to each party’s contribution to the maintenance of the marital home and the marital estate, both financial and non-financial, as well as each party’s ability to acquire future assets.    Consult with counsel to explore the specific facts of your case and how your retirement may be subject to division.

No.  All assets are considered part of the marital estate and subject to potential division, regardless of whether they are individual accounts that are not co-mingled.  Even if the parties never joint their bank accounts together, all bank accounts are marital assets.

Conduct is not generally relevant to asset division or the determination of support.  Financial misconduct would be relevant, such that if a spouse mishandled marital funds or assets, for example, by gambling away $50,000, or spending thousands of dollars on an alcohol or drug habit, or utilizing significant marital funds toward an extra-marital affair, the court will consider such misconduct in making an equitable division of the assets taking those financial misappropriations into account.

Mediation is often the swiftest way to accomplish divorce. The mediation process consists of mediation sessions where the parties discuss and negotiate their issues, until they reach agreement. I typically schedule about two weeks out for appointments, given the state of my calendar. The parties may need more than one session, depending on the complexity of the issues, the amount of time needed to work through each issue, and the time needed for the parties to acquire additional information needed to resolve issues (such as, for example, applying for the refinance of a mortgage) If the parties require two, three or four sessions, typically those sessions will occur over two to three months. Once the parties have resolved all issues, the mediator will typically need one to two weeks to complete the drafting of the separation agreement, financial statements and other pleadings needed for the uncontested divorce package to be filed with the court. Once the separation agreement and financial statements are circulated to the parties, each party has the opportunity to review the documents with counsel of their choosing, and request edits and revisions of the agreement until both parties are satisfied with the final draft. This make take a few weeks. Once the agreement is approved by both parties and is ready to be signed, the parties will schedule an appointment to come in to the mediator’s office to sign the agreement and pleadings. The parties will then file the uncontested divorce package with the court. Upon filing, the court will typically schedule an uncontested divorce hearing date within four to six weeks of filing. The divorce becomes final 120 days after the hearing (conditional divorce nisi period).

By contrast, a contested divorce make take one year or longer. Contested divorces are placed on a fourteen-month track by the Court, and a pre-trial hearing does not take place less than six months after the complaint is filed. That is, by statute, the parties cannot obtain a divorce inside of six months from the date of filing —however if an agreement is reached, the parties may convert the 1B contested divorce to an uncontested divorce by filing an Affidavit of Irretrievable Breakdown and requesting an uncontested hearing date.

You are not required to have a lawyer present during mediation, but I always advise my mediation clients that they have the right to proceed with counsel present, or in the alternative, to consult with counsel of their choosing outside of mediation, before and after sessions. At minimum, it is highly recommended that each party have the draft separation agreement reviewed by an attorney of their choosing before signing. Many lawyers will offer per diem services to review proposed separation agreements and offer suggested changes and edits, which are then taken back to the mediator for discussion and editing.

I typically schedule mediation sessions in two-hour blocks, because one hour is usually not long enough to work through all of the issues to be addressed, and three hours or longer tends to be very draining on the parties. However, I am happy to schedule mediations in longer blocks at the parties’ request, particularly where there are complicated issues, and the parties wish to consolidate mediation sessions to the least number of days taken out of work to attend. The parties pay for only the amount of time actually expended for each session, such that, if we spend two hours and twenty minutes, the parties are charged 2.4 hours at $275.00 an hour, payable at the conclusion of the session.

Mediation can be successful in even the most contentious, emotionally driven cases. The neutral mediator has the task of breaking through the barriers, such that each party is able to understand the reasons behind the position of the other party. The mediator listens carefully and finds areas of potential compromise that the mediator will suggest. The parties, through this assisted dialogue, often learn ways to compromise that they were unable to ascertain during their own conversations with one another, because emotions were running high and communication was failing. The Mediator is a neutral who cuts through the emotion, evaluates each party’s position, and facilitates the communication and negotiation process.

Yes. Mediation is confidential, by law. Nothing that is said in mediation can be admitted as evidence in a later court proceeding, the mediator cannot be subpoenaed to testify, and the mediator’s notes are also confidential and not discoverable in a court proceeding. This allows for the comfortable flow of discussion so that each party feels free to offer suggestions that they will not later come to regret. All communications are confidential during mediation, without exception.

Not necessarily. While many mediations are successful when the parties meet together to discuss the issues at hand, if the mediator feels the dynamics of the case are such that placing the parties in separate rooms where the mediator goes back and forth from each room, delivering negotiated proposals, the parties will begin together, but then separate. This process is called “caucusing.” Caucusing can be highly effective in certain scenarios. The mediator explores options with each party privately, discussing the strengths and weaknesses of their position. The mediator will obtain authority to extend an offer/counter offer to the other party. This continues back and forth until agreement is reached. The private caucus session allows the mediator to work separately with each client in order for each party to privately process and react to offers of the other party, and to assess their own positions in private. Click here to read an interesting article, “To Caucus or Not to Caucus – That is the Question.” https://www.mediate.com/articles/israelL13.cfm

No. The mediator does not make any decisions or rulings and does not act as the judge. The mediator is a facilitator of discussion of the issues and negotiation of terms. The mediator assists the parties in movement toward a middle ground that is fair and reasonable to both parties, often with compromise by each of them. While a mediator may provide the parties with useful information relative to the divorce laws and how the Judges may interpret and enforce those laws, the mediator cannot make any rulings or impart any legal advice. Only the parties themselves determine the outcome during the mediation process.

Both parties should meet with the mediator in person before deciding to hire the mediator. The parties should each feel comfortable with the mediator’s personal style, and should feel they can openly speak with the mediator. The mediator should be evaluative, facilitative, and help to elicit discussions. The mediator should evaluate the strengths and weaknesses of each party’s case, and discuss those strengths and weaknesses, so the parties understand what a potential litigation may look like. The parties should feel comfortable with the mediator’s tone, her personality, and her knowledge of divorce and family law. The parties should feel that the mediator is equipped to handle the most sensitive and heated disputes, by being impartial and evaluative.

No. The mediator does not represent either party. Moreover, should mediation terminate before reaching agreement, the mediator is prohibited from later representing either party, as this is a conflict of interest. The mediator cannot impart legal advice to either party or advocate for them in any way. As such, the mediator always recommends that each party consult with their own counsel to ensure their position is adequately represented.

All cases can be mediated, even those that are currently in litigation. In fact, the Court will sometimes refer parties to mediation to assist them in reaching resolution. In family law cases, the court routinely urges the parties to discuss the issues before resorting to trial, so that the parties can have control over the outcome. Parties can mediate their issues even if currently being litigated, and once they reach agreement, they may submit an agreement for judgment, closing out the open case.

As part of mediation, the parties are required to fully disclose all financial information, including all information relative to income, assets, expenses and liabilities. The parties sign an agreement which contains a clause that they shall each voluntarily disclose all requested financial information. If either party feels that the other has not been forthcoming, we will address that concern at mediation, we discuss proposed agreements for disclosure of financial information (for example, exchange of three years of retirement statements, tax returns, bank account statements and credit card statements). If the parties cannot agree on disclosure of the necessary and relevant financial information that is the foundation of a divorce, the parties may need to avail themselves of the court process where there are rules of procedure governing discovery. The Mediator does not have the ability to compel discovery where a party is resistant in doing so, and if a party feels that the other is not being forthcoming about their finances (a self-employed party, for example), then litigation may be the only recourse. In most instances, however, the parties work through their concerns about financial disclosures, and reach agreement for discovery as part of the mediation process.

No, a party cannot be forced to mediate. Both parties must willingly, voluntarily choose mediation as an alternative to litigation. If a spouse is dragging their feet, it may be an indication that they do not have a full understanding of the mediation process and may need an opportunity to learn about it first. A resistant spouse may also feel pressured by the other spouse driving the terms of the separation. It is best if each spouse feels that they have a say in the plan for divorce process. Instead of demanding that a reluctant spouse contact the mediator to make an appointment, it may be better to give the spouse time to research the mediation process, and potentially find several prospective mediators from which the parties may choose together. Other times, a resistant spouse is at an emotional place where he or she is not ready to accept terms of the divorce. Sometimes, one spouse has had more opportunity to accept that the marriage is over, and the other spouse needs some time to come to grips with that fact, before being asked to come to the table to discuss the terms of the divorce.

The initial consultation is a $200 flat fee. The parties may have a joint initial consultation, or they may do so separately ($200 fee for each individual session in that instance). Payment for the mediation session will be due at the end of each session for the pro-rated time I have spent with you, at my hourly rate of $275. For example, if you have a first mediation session that lasts 1.7 hours, your fee to be paid at the conclusion of the session will be $476.50. You will pay for each session as they occur, at the conclusion of the session. Some parties only require one to two sessions, and others need several sessions.
Once the matter is settled and the parties have reached agreement, they may choose to then hire me to draft the agreement of terms (the “Separation Agreement”) the parties’ financial statements, and several other pleadings required for filing. This is a separate flat fee of $1,000 (Representing about 4 hours of legal work). Once the flat fee for drafting is paid, I will commence drafting the agreement and pleadings. That is the last fee that will be paid by the parties. The Court filing fee for an uncontested Joint Petition for Divorce is $215 which is paid at the Clerk’s office at the time of filing.