Massachusetts Divorce Frequently Asked Questions

Alimony is determined by G.L c. 208, § 34 which lists the factors a judge must consider in awarding alimony. There are approximately fourteen mandatory factors and four optional factors. Alimony is not appropriate in every case. Alimony may be appropriate in the following examples:

• One spouse can't support themselves due to health or handicap issues.
• The marriage was not short term and there is a significant difference in income between the spouses.
• One spouse has excess income over their needs and the difference in net income between the spouses is very large.
• Other cases not described here.

Alimony may also be appropriate as a way to reduce taxes when child support is awarded. Since alimony is deducted from income for taxes to the payor and included as income for taxes to the recipient, it may be advantageous to treat child support as alimony.

Massachusetts divorce law is gender neutral. We have an Equal Rights Amendment that mandates that the courts treat people equally without bias based on gender. This means that in the correct circumstances, men can receive alimony. Generally, alimony is paid from the family bread winner to the spouse that was not the bread winner during the marriage. This means that if the wife was the major income earner during the marriage, she could pay the husband alimony. However, there are many factors that determine if alimony is appropriate in any particular case. Alimony is not automatically given in divorces.

There is no formula for alimony although some Judges may have their own approach. In Massachusetts alimony is based on consideration of the following factors:

• The length of the marriage
• Theconduct of the parties during the marriage
• Theage, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
• Theopportunity of each for future acquisition of capital assets and income
• Thecontribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
• Thecontribution of each of the parties as a homemaker to the family unit

While some states allow a court to suspend visitation to enforce support payments, Massachusetts does not allow this.

Yes. If physical custody is granted to one parent, then the other parent will pay child support. However, a traditional physical custody award assumes that the child spends approximately one third of the time visiting the other parent. If the time spent with parents varies from one-third visiting and two-thirds with custodial parent, then child support may vary from a strict application of the child support guidelines. The child support guidelines call for a different formula when time spent with the child approaches an even split. Furthermore, an argument can be made that failure of a non-custodial parent to exercise his or her visitation rights may result in an increase in child support obligations.

Generally, no. The courts will only terminate parental rights when there is another person adopting the child to take over the child support obligation or in extreme cases of abuse. The focus of child support is the child and not the paying parent. Termination of parental rights harms the child by reducing the parents of the child by one. This is considered harmful to a child. Certainly, a child support obligation can be burdensome to a parent. However, the parent does not have the option of eliminating child support by terminating parental rights.

If you have children under 18 and are getting divorced in Massachusetts, you must take a parent education class. The course is not designed to teach basic parenting skills but is designed to help you understand the challenges of having parents in two households. Information on this class including a list of providers can be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/parenteducation.html.

Once a divorce has been started in Massachusetts, the children may not be removed from Massachusetts without permission of the other parent or a judge. When ruling on a request to remove children, the court will apply the "significant advantage test." Under this standard, the court will examine how the move will affect the children including if the move will result in reduced contact with the non-custodial parent.

As a general rule, children don't decide custody. In a contested case, the Judge will decide custody. If the child is fourteen years old or older, the Judge must have the child interviewed to determine the child's wishes. However, this is not the determining factor. At some point, the child will be able to decide the issue. Usually this occurs when the child is 16 or 17. If the child is under 14, the judge may consult the child. However, the judge should decide custody based on the best interests of the child and not the child's wishes.

Custody is decided by determining what is best for the child. The court may award custody to either parent, regardless of gender, based on the best interests of the child. Generally, custody is viewed as allocating time with each parent. The most common custody order is school nights with the "custodial parent" and the other time, including weekends, holidays, and vacations, split between the two parents. In addition, it is common for the "non-custodial parent" to take the child to dinner one evening each week.

Until you get before a Judge, there is nothing that requires the custodial parent to allow visitation. While morally, every parent should always facilitate visitation, this does not always happen. Without a court order, there is nothing that compels visitation.

If an order of the court is violated, a contempt action can be filed against the person who violated the order. In a contempt action, the court can fashion a remedy to correct the behavior in the future or to punish the violation. While contempt is available when any order is violated, contempt for custody or visitation orders may be treated differently. The court usually does not punish a person who fails to exercise visitation. If one parent can visit every other weekend and refuses to visit, there is little a court can do since the court can't force a parent to visit the child. If a parent takes the child in violation of an order under circumstances where it appears that the parent does not intend to return the child, it may be appropriate to go to court for an emergency order or even consider criminal charges of parental kidnapping.

Joint custody means shared custody. There are two concepts in custody: legal and physical. Legal custody is the power to make decisions for a child such as religion, medical, educational, and extra curricular matters. When there is joint legal custody, these decisions should be made together. Physical custody refers to the physical presence of the child. Joint physical custody means that the child's time is split between the two parents. The parent with the child will make the ordinary, day to day decisions without consulting the other parent. In divorces, joint legal custody is the usual result. Usually, one parent has more parenting time (physical custody) with a child than the other parent.

Yes. Cooperation between spouses will make the divorce process easier and less expensive. Without cooperation, the divorce is a contested matter that is longer and more expensive. However, your spouse can't stop you from getting a divorce.

Massachusetts has adopted a limited appearance representation rule for lawyers (LAR) which is effective in most counties. Under this rule, clients can hire attorneys for limited matters such as one day in court, preparing and attending a pre-trial conference, taking depositions, or drafting documents. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis.

This practice is called ghost writing and was prohibited under the Attorney's Code of Ethics. However, Massachusetts has adopted a limited appearance representation rule for lawyers (LAR) which allows ghost writing as long as the document reflects that it was drafted by an attorney. Under this rule, clients can hire attorneys to draft documents. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis. The limited appearance rule is not effective in all courts in Massachusetts.

No. There is a conflict of interest between divorcing spouses even when they cooperate in getting the divorce. A lawyer cannot represent both parties in a divorce because a lawyer owes a duty to his client and can't divide this duty between two clients. While one attorney may draft an agreement that is fair to both spouses, each spouse should have their own attorney review the agreement before it is presented to a Judge for approval.

You don't have to hire an attorney as you have the right to represent yourself. You could, however, be putting yourself at a serious disadvantage. Unless you and your spouse have no significant assets, children or unsettled issues, the divorce can become very complicated. An experienced family law attorney can be of great help during litigation.

Yes, there is a court hearing involved in an uncontested divorce. The state is considered a party to every marriage and must participate in every divorce. The state is represented by a Judge who must find that the settlement is fair and reasonable to all parties and that children are adequately protected. In addition, the Judge must protect the State in the event that one party receives public assistance and ensure that all parties are covered by insurance. In most cases, an uncontested divorce hearing is quick and routine.

The easy is answer is to file a divorce and serve your spouse. Upon filing an action for divorce, an automatic financial restraining order issues. It is binding on the Plaintiff upon filing the divorce and binding on the Defendant upon service of process on the Plaintiff. This means that once the initial divorce papers are served on the spouse, the spouse is prohibited from transferring or hiding assets except for ordinary living expenses and to pay their attorney. If they want to use assets for another purpose, they need the written consent of the spouse or an order of a Judge

If the divorce is uncontested, the two parties file a joint petition for divorce with a separation agreement and an affidavit of irretrievable breakdown of marriage. The separation agreement must address all aspects of the divorce. If the divorce is contested, a divorce is started by filing a complaint for divorce and serving a summons and a copy of the complaint on your spouse. The summons will be provided by the court when you file the divorce. There is a filing fee for both types of divorce that can be waived if the filing party is indigent.

Massachusetts allocates property between spouses based on an equitable division of property. This means that the court will consider the following factors in allocating property:

• The length of the marriage
• The conduct of the parties during the marriage
• The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
• The opportunity of each for future acquisition of capital assets and income
• The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
• The contribution of each of the parties as a homemaker to the family unit.

Equitable division does not mean an equal division of property although an equal division of property is common. Equitable division means that the property will be divided fairly.

If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident

A divorce will be final ninety days after the Judge issues a divorce decree which is called a decree nisi. After this waiting period, the Court will issue a final divorce decree called a decree absolute. The decree nisi issues when the Judge grants the divorce. If the parties have an uncontested divorce with a separation agreement, the Judge must first approve the agreement which then has an additional thirty day waiting period. In these cases, the divorce generally becomes final 120 days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge.
The waiting parties allow the parties to file an appeal (only in contested divorces), reconcile, or notify the court if they believe the other party fraudulently hid assets or income.

An ex-spouse can be covered under your health insurance as long as neither one remarries. Upon remarriage of either party, the ex-spouse is no longer eligible for coverage. They can be covered by a rider to your policy or by an individual plan through your employer. For more information see G.L.c. 32A, § 11A.

Other than issues relating to children, Post-decree modification usually does not occur unless there is a provision in the separation agreement to do so or if the other party committed fraud, used undue influence, or made a misrepresentation. A modification can occur to correct mutual mistakes. Issues relating to children including visitation and child support may be modified based when a material change in circumstances occurs.

As Massachusetts allows a divorce on the grounds of irreconcilable differences, you can't oppose the divorce. All your spouse needs to prove to get a divorce is that they can't live with you or don't love you. This grounds for divorce is frequently called "no-fault divorce." A fault grounds divorce can be contested but it will almost certainly be changed to a no-fault divorce before the case is over.

Adultery is still a crime in Massachusetts although it is extremely rare to find a prosecution. Many people start to date before they separate from their spouse and never face a criminal prosecution. It may be wiser to consider the effect dating will have on your divorce. If your spouse knows about your dating, it may make a divorce more difficult and expensive. If you are discreet about other relationships, there may be no adverse effects from dating before you are divorced. If your spouse introduces evidence of your dating at a divorce trial, it is unlikely that a judge will pay much attention to your dating as long as it doesn't effect your children, income, expenses, or assets.
If you shower your dates with expensive gifts, you can expect an adverse reaction from a judge as such action is likely to be viewed as a violation of the automatic financial restraining order.

Yes. If the parties agree on all issue, a simplified divorce procedure is available. An action for divorce based upon an irretrievable breakdown of the marriage may be commenced by filing a joint petition for divorce. The joint petition must be accompanied by a sworn affidavit alleging that the marriage has suffered an irretrievable breakdown along with a separation agreement. The parties can request a hearing date on the same day the papers are filed.

The final divorce decree is called a Decree Absolute and may be purchased from the court. The divorce is final even if you don't have this document in your possession. If you want a copy of the Decree Absolute contact the court where you were divorced and purchase it. The fee is $20.00 for a certified copy plus one dollar per page for every page except the first.

Yes. A separation agreement is not enforceable without approval by a Judge. The State is considered to be a party to the marriage and must approve the terms of a divorce. The State is represented by a Judge who must determine that the separation agreement is fair and reasonable before divorce can be final.

These papers probably include a separation agreement which will resolve all issues in the divorce. Signing these papers will mean that you agree with all terms. If you don't sign the papers, the divorce will be considered contested. The issues may be resolved by a judge instead of by agreement of the spouses. Before signing these papers, you should consult an attorney to understand the terms of the proposed settlement.

Annulment is a declaration that the marriage never existed. If there was an impediment to the marriage such as a party was still married to a previous spouse then the marriage never occurred. An unwise marriage is still a marriage and needs to be terminated by a divorce. Fraud, undue influence, or legal impediments are possible grounds for annulment.

In a no-fault divorce, the parties have to prove that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In other words, if one person wants a divorce, the couple will be divorced. In a fault divorce, the Plaintiff must prove that the Defendant has committed a wrong that allows the Plaintiff to get a divorce. People think that a fault grounds divorce gives the Plaintiff an advantage in getting property division or alimony. This is not the case as the Court must consider the same factors to decide these issues in both fault and no-fault divorces.

Temporary orders are orders issued by a Court before the final judgment enters in a case. Frequently people in a divorce are unable to cooperate with each other. A judge will issue orders during the pendency of a divorce to address issues that can't wait until the final judgment. The following issues are typically addressed in temporary orders:

• Should one party vacate the house?
• Which parent will be primarily responsible for the custody of the children?
• How often will the other parent visit the children?
• What money is paid from one spouse to the other for child support or spousal support?
• Who gets to use the individual assets like cars, furniture, etc.

Many other matters can be addressed in temporary orders as well.

The person who files a contested divorce is known as the Plaintiff. The other party to the divorce is called the Defendant. If a joint complaint is filed for a no fault divorce, both parties are referred to as Co-Petitioners.

"Venue" refers to the proper local court to file a divorce case. In Massachusetts, divorces are filed in the Probate and Family Court. The proper venue for a divorce action is the county of the parties' last residence as husband and wife. If neither spouse still lives in the county of the last marital domicile, the divorce may be filed in the county where either party resides.

A separation occurs when a couple voluntarily lives apart. A legal separation is a separation approved by a Judge. Such approval requires a Judge to consider support, child custody, health insurance, and use of property. Massachusetts does not have a "legal separation." Parties can obtain temporary orders during a divorce action or they can obtain a decree of separate support which most people consider a legal separation. A separation is not a divorce, so the couple remains legally married. If they want to get divorced, they must file a new action.

An uncontested divorce is a divorce in which both parties have agreed on all issues and put the agreement in writing for the Judge to approve. If there is one issue that is not agreed upon, then the divorce is still contested. If the parties have agreed on all issues before the divorce action is filed, then they should file a joint petition for divorce. Otherwise, the divorce will start as a contested divorce and then change to uncontested when the parties reach an agreement.

In a divorce, within forty-five days after service of the complaint and summons on the Defendant, both parties must provide to the other three years of records (tax returns, bank statements, investments statements, insurance information, etc.) These documents must be produced even if the other side doesn't request them. If you don't have these documents, you must get them. Failure to provide these records can result in court sanctions. The rule explaining this may be found at http://www.lawlib.state.ma.us/source/mass/rules/probate/supp410.html. This rule does not prevent parties from engaging in additional discovery.

"Grounds" for divorce is the "reason" for divorce. The State will only alllow a divorce for a recognized reason as set forth by statute. The most common reason for divorce is "Irretrievable breakdown of the marriage." Irretrievable breakdown is also called "no-fault divorce." This means that you can get divorced if you no longer love your spouse. In addition, Massachusetts has fault grounds for divorce including:

• Adultery;
• Impotency;
• Desertion for at least one year;
• Addiction to drugs/alcohol;
• .Cruel and abusive treatment;
• Refusal to support spouse when able; and
• Confinement in penal institution for 5 or more years

Traditionally, once a lawyer accepted a litigation case, the lawyer did everything. The client never went to court without a lawyer and the lawyer drafted every document. Of course, attorney fees relate to the amount of work performed by the lawyer. The more work the lawyer did, the higher the fees. Massachusetts has adopted a rule which allows lawyers to represent clients for individual days, actions, or to draft individual forms. While this rule is not effective in all courts in Massachusetts, it is available in most probate courts. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis.

Surprisingly, the Court usually does very little when adultery is proved. Massachusetts is a no-fault divorce state and while the Court will consider wrongful conduct, it usually doesn't make much difference in a divorce. This is because the bad conduct is part of the factor "conduct of the parties during the marriage." It is hard to imagine a marriage where the only conduct by one party was bad conduct. Usually every person has good conduct and bad conduct during a marriage. The Judge must consider both good and bad conduct. As a result, it is rare that a person has behaved so badly during a marriage that it has a significant affect on the outcome.

Usually, each party pays his or her own legal fees and expenses. If your financial circumstances are such that your spouse has sole control of the finances, and you have no access to funds with which you can pay legal fees, you have a right to file a motion with the Court requesting that your spouse release to you a portion of the funds with which you can pay your legal fees during the divorce proceeding. At the end of the divorce, attorney fees may be treated as a liability incurred during the marriage and allocated between the parties as part of the property division. In addition, the court can order attorney fees to be paid by a party when the court believes that a party has behaved improperly such as failing to obey a court order (contempt of court).

The reason to have a prenuptial agreement is that you can try to determine in advance how to handle inheritance and division of assets and alimony on divorce. If you desire a greater degree of certainty you can expect that under most circumstances a judge will enforce a validly executed prenuptial agreement. So for example, if it is your view that you want all of your premarital property to remain yours in the event of divorce, and go to your parents, or children from a prior marriage, upon your death, that is something that will likely be enforced in a prenuptial agreement, but without a prenuptial agreement state law would generally not permit. With respect to alimony, the case law is a little less clear, but, if a prenuptial agreement contains a provision in which both parties waive alimony, this provision will generally be enforced, at least in a short term marriage. If the marriage lasts a long time or one spouse is particularly in need of financial help at the time of divorce, it may be possible that a prenuptial agreement will not be enforced, based upon all of the facts of that particular case.

So each case is different. The benefit of a prenuptial agreement is that you are increasing the chances that you can predict what will happen if you die or divorce. But there is no absolute certainty.

Pensions are not subject to division for the value owned prior to marriage but are subject to division for the value that accrued during the marriage. If the husband had a $25,000.00 pension or retirement account at time of marriage and it has increased to $100,000.00 at the time of divorce, then the $75,000.00 increase is subject to division. Pensions are generally divided by an order of the Court called a Qualified Domestic Relations Order or a QDRO.

Every person who appears in a divorce or support proceeding that involves money or finances must fill out a financial statement. If your income is under $75,000.00 per year you should fill out the short form. If your income is $75,000.00 or greater, you should fill out the long form. If you complete the financial statement before you go to court, you may be able to get out of court faster. In addition, you are likely to be more accurate with your numbers if you complete the form in advance. Financial Statement Forms including schedules for self employment and rental income and instructions for filling out the forms may be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html#financial.

The court may order that one spouse support the other while the divorce is pending in court. This support is called temporary alimony.

These laws are also complicated and hard to summarize in one paragraph, in that the courts have a great deal of discretion in awarding alimony and dividing property on divorce. As a general rule of thumb, in Massachusetts, the longer you are married, the more likely it is that your entire estate will be divided equally with your spouse upon divorce. In a short term marriage the most typical approach is to return the parties to the situation they were in before they got married. There is no hard and fast rule on what constitutes a short term marriage or a long term marriage. The courts can consider as factors what your assets were at the time of the marriage, but merely because they were assets acquired before the marriage does not exempt them from division at the time of divorce. If there are any extenuating circumstances a court can award alimony or divide assets to aid a sick or disabled spouse even if the marriage was for a very short period of time. Courts are also entitled to consider marital fault when dividing assets and awarding alimony so there is no way of completely anticipating what will happen to your property in the event of divorce.

For a more detailed answer to this question you should consult Massachusetts General Laws Chapter 208 section 34, and consult an attorney, as the answer to this question will vary depending upon all of the circumstances in your marriage.

In Massachusetts, property is almost always valued as of the date of divorce and not the date of separation. Marriage is viewed as a partnership that can only be terminated by a Court. Therefore, the partnership continues after separation and both parties will share in any increase (or decrease) in assets from date of separation to date of divorce.

Gifts and inheritances are assets that are subject to equitable division. A judge can assign all or part of the assets to your spouse as part of the overall division of property. If there are other assets that are adequate to provide for the needs of the parties, gifts and inheritances may be treated as separate property. This is particularly likely to happen if the assets were not commingled with other assets and were not used for the benefit of the marriage.

There are two aspects to this question: property division and child support/alimony payments.

• Any property obligations that are not completed may be discharged in bankruptcy. This means that if property is to be transferred from your ex-spouse to you or money is to be transferred as part of the property division, then this obligation may be discharged and you may not get the property. You should consult a bankruptcy attorney immediately to determine if your rights are affected and what you can do about it.
• Alimony and child support are generally exempt from discharge in bankruptcy as they are considered "domestic support obligations." If they are domestic support obligations under bankruptcy law, then they will still be obligations after the bankruptcy is over. You should file a document with the bankruptcy court to establish any arrears owed for the DSO and have the bankruptcy trustee collect the money for you as this is a priority debt in bankruptcy. However, the trustee will only collect the money if the debtor's estate has assets available to pay creditors. If this is a no-asset bankruptcy, the trustee won't be able to help you..

Please note that bankruptcy court determines if the debt is a domestic support obligation or property division and the state Probate Court has no power to determine this for a bankruptcy. Therefore, you should consult a bankruptcy attorney to determine your specific rights.

These are complicated and vary from state to state and from time to time they are amended. In Massachusetts you cannot completely disinherit a surviving spouse. This is the case in most states. Under Massachusetts law if you write a will that leaves nothing to your spouse the law gives the spouse a right to claim his/her forced share by filing in court. Under current law the spouse would be entitled to the income for life, on one third of the decedent's estate if there are surviving children, or one half of the decedent's estate if there are no surviving children.

Debts are treated as "negative" assets and are divided as part of an equitable division of property. This means that the court will consider the same factors in allocating debts as it will use in allocating property. Any liability that is secured by an asset usually becomes the obligation of the person who receives the property. An example is that a mortgage is secured by real estate and usually becomes the obligation of the person who lives in the real estate. An auto loan usually becomes the obligation of the person who has use of the car. Credit card debt is usually not secured and is part of the general division of assets.

Retirement funds are placed into two categories: acquired before the marriage or acquired during the marriage. Retirement funds that were owned at the time of divorce are generally not subject to division in a divorce. However, growth of an account owned prior to divorce is treated as acquired during the marriage. Retirement funds acquired during the marriage are subject to division as any other asset of the marriage is treated. As an example, assuming the husband has a 401k account that he owned prior to marriage. At the time of marriage, the value was $100,000.00. During the marriage, the husband contributed an additional $100,000.00. The account also increased due to the market and interest by an additional $50,000.00 for a total value of $250,000.00. Under these circumstances, $100,000.00 of the account will not be subject to division and the additional $150,000.00 is subject to division as a marital asset.
Retirement funds may require a special court order to divide the asset pursuant to a divorce. If so, the court will issue a Qualified Domestic Relations Order which is commonly called a QDRO to divide the asset. The QDRO must be prepared by the parties and the party that controls the retirement funds may need to be consulted.

When the Plaintiff files the divorce and when the Defendant is served with the complaint and summons, each party is subject to an automatic financial restraining order. This order prohibits each party from transferring money except to pay usual and customary living and business expenses or to pay their attorney. It also prohibits parties from incurring debt in their spouse's name, or changing life or health insurance policies. Violation of this order may be punished as a contempt of court.

Not always. Some couples would like a written memorialization (i.e., Postnuptial Agreement or a Memorandum of Understanding) of what they have agreed to in Mediation to Stay Married. This can be a template for them while going forward in their marriage. Some couples feel that the verbal understanding is enough and that a written agreement would be too intrusive.

In divorce mediation, the couple sits down together in a cooperative spirit instead of attempting to one-up each other in an adversarial contest. To their great benefit, the couple reduces the cost and bitterness of divorce. Following mediation ground-rules agreed upon at the outset, the couple uses the mediation process to reach agreement on issues requiring resolution for their divorce. The mediator does not judge the couple or act as a therapist. The mediator encourages the couple to engage in balanced, forward-looking negotiation and to achieve compromise that is fair and practical. An experienced, qualified mediator knows what issues need to be covered in the couple's written agreement and guides each couple accordingly.

Mediation to Stay Married does not seek to delve deeply into the past or interpersonal, psychological issues of the couple (or its individual members.) Through Mediation to Stay Married, the couple can develop concrete plans or modes of action that can be helpful to address their marital problems. The couple sees a trained mediator (often a practicing attorney or a mental health professional who has mediation training), who uses short-term dispute resolution techniques to provide help in breaking impasses and in improving the couple's interpersonal communication skills. Sometimes using a "new horse" gives a couple the extra push it needs to get over a difficult period and to move forward to the next step in their marriage.

The legal status of Postnuptial Agreements is somewhat unclear, and depends on what state you live in. In Massachusetts, it is likely that under the correct facts and circumstances, a properly conceived and fairly written Postnuptial Agreement (like a prenuptial agreement) can be valid in case of a divorce. More importantly, the Agreement can set the couple on a path towards reconciliation and clarity over issues that are troubling them and can help prevent divorce.

Yes. Mediators who are psychotherapists and counselors can be extremely helpful in assisting couples in distress. For Mediation to Stay Married, it is preferable that the mediator be experienced in divorce mediation. Often a couple will see a mediator at the same time they are seeing a couples' counselor or are seeing a therapist individually. It is good to use as many techniques as are effective. Couples can also receive help from mediators who are not attorneys or mental health professionals when experiencing marital problems.

Yes. Often people are completely unrealistic about divorce and what life after a divorce will be like. There are two areas of confusion - one is that a divorce will solve their problems. The other misconception is what the financial result of a divorce will be. Most divorcing couples have a highly unrealistic view on what life will be post-divorce based on totally false facts. A reality check can be very helpful before a couple makes irrevocable steps to divorce.

Participants in the divorce mediation process often wonder ... should they keep the discussion of issues going between sessions ... or is it advisable to call a halt to outside discussion? The answer is: it depends. Most often, the parties to the mediation are well-guided by their own instincts in this area. Parties uncertain about the wisdom of outside communication, or the limits to set, will find guidelines evolving as the mediation proceeds, and, in any event, can raise the subject in mediation. If the parties want to communicate constructively between sessions, their mediator will encourage them to go ahead and try. But for divorcing couples with an especially difficult relationship, the mediator may discourage outside discussion of the issues -- between some sessions, at least.

Contribution (financial or otherwise) has everything to do with marriage, and also everything to do with divorce. If one party feels he or she is carrying the weight of responsibilities, the marriage will be detrimentally affected. Mediation to Stay Married can work on these perceptions and sometimes help resolve these issues.

Mediation is sometimes entered into by a married couple with the express intention of reducing conflict in their marriage. This type of mediation is often referred to as "marital mediation." Marital mediation is different from psychological counseling and is not a substitute for counseling. Marital mediation, like other mediation, has a practical, agreement-oriented and detail-oriented focus. In marital mediation, once a couple identifies specific areas of conflict to work on, they can use the mediation process to find points of agreement and negotiate conflict-reducing resolutions. Throughout the process of marital mediation, the couple will be developing and practicing cooperative, respectful, constructive ways of communicating and reaching accord

Mediation to Stay Married (also known as Marital Mediation) is a method of helping couples who are experiencing marital problems and who would prefer to stay together rather than get divorced.

Marital counseling is performed by a mental health professional and involves therapeutic analysis and insights. While very useful to many couples at times during their marriage, often a couple finds that marital counseling does not produce results, despite the skill of the marriage counselor or the integrity of the process. Mediation to Stay Married is a practical method that relies on dispute resolution techniques. If performed by an attorney, the couple can be assisted by legal-based knowledge and options, from which the couple may benefit. Mediators with other backgrounds (mental health, employment, etc.) will bring their special skills and training to the process. The benefit of Mediation to Stay Married is that it can sometimes help people move forward to the next step in their marriage.

Marital Mediation is a term used by many mediators to mean mediation with a married couple that is trying to stay married, but it also means divorce mediation to some people. Sometimes people enter Marital Mediation who are not sure whether or not they will be divorcing, so the term is quite neutral. Mediation to Stay Married is mediation with an intent or aim to try to work out problems in the marriage that the couple is suffering over.

A couple may have gotten married without entering into a Prenuptial Agreement in a case where that type of agreement might have been very useful, such as a marriage where one or both of the parties have children from a previous marriage. A couple may have different spending habits and styles which are making them very angry at each other. Or one of the spouses may be an entrepreneurial risk-taker, while the other may be more financially conservative. A couple may be driven apart by a renovation or job losses. Couples with these and other financially-based fact patterns can sometimes be greatly helped by Mediation to Stay Married.

Many marriages (especially more lengthy marriages) fail due to financial problems and concerns. Issues of contribution (monetary and otherwise) have a huge impact on the viability and happiness of marriages. A job loss or a bankruptcy can make a couple distrustful of each other, to the point at which the marriage is at risk. Or, an inheritance can be imminent at a time when a marriage is experiencing problems. Mediation to Stay Married can also be used to heal a marriage in the case of infidelity and problems with children. It is also extremely helpful to address the "garden variety" conflict that arises from time to time in all marriages.

Many marital problems (especially in more "mature" marriages) flow from financial disputes and insecurities. Mediators who are practicing attorneys are often in a good position to analyze finances, understand legal options, and assist the couple in finding concrete solutions about their financial problems. It may be helpful to use a lawyer/ mediator who has knowledge in the following areas: divorce, tax law, estate planning, business law, or a combination of these.

People often "jump the gun" when they are having marital problems. Their minds immediately go to the idea of divorce, because they see and know of no other option. Mediation to Stay Married (also known as "Marital Mediation") helps a couple envision a positive future and possible result for them if they stay together and have a (potentially) happy marriage, rather than proceeding to a divorce. It's a matter of "envisioning" the possibility. What people often don't know is that marriage skills can be taught and learned. The difference between a marriage that lasts and one that breaks down is generally the success of this learning process.

Utilizing Mediation to Stay Married is not a choice of one method over another. A troubled couple should use all the resources they can. If one or both of the parties suffers from depression, addiction, or other problems, individual counseling is clearly indicated. Couples can also get great help from marital counselors, and if they have not been helped by a series of marital counseling sessions at one point in their marriage, they may be helped the second (or third) time they try it. Sometimes a few little kernels of knowledge gained by the couple's efforts in all directions will provide the help they need to overcome a problem that is causing their marriage to break down.

Yes. Many couples in divorce mediation have said that if they had known what they learned about conflict resolution in their divorce mediation while they were married, they would not have needed to get divorced. As Mediation to Stay Married progresses, the couple learns to use new techniques to address conflict in their own marriage. They will have another tool in their "marital toolbox" as they go forward.

Although the mediator is not acting as an accountant or financial advisor, the mediator should be knowledgeable about tax and financial issues that arise in connection with divorce. Ms. Wasserman has the knowledge and experience to answer many questions in these areas and also provide appropriate referrals to other professionals, as specific issues arise that require outside expertise. Such professionals may include accountants, business or real estate appraisers, pension actuaries or financial advisors. One advantage of the mediation process is that the couple uses outside professionals on a limited, as-needed basis, in order to gain specific information or advice contributing to positive negotiation -- a major departure from the costly, inefficient use of professionals as adversarial experts in traditional divorce contests.

Whoever the mediating parties are - whether a divorcing couple, siblings with an estate conflict or family members dissolving a business - each party to the mediation will have an opportunity to explain his or her individual perspective. It is part of mediator's role to allow time for this, to listen attentively to each party and to help the parties listen to each other. The mediator should have training on the subject of neutrality, including gender neutrality, and knows how essential it not to judge the parties or choose sides. The mediator should appreciate the emotional and financial complexities of your situation and will use the mediation process to gain an understanding based on real issues, not surface impressions.

As a general rule, you should avoid introducing dates and potential romantic interests to your children until the divorce is allowed by a Judge and your new relationship has the potential to be long term. Introducing children to a date has the potential to cause harm to the children. Children usually have difficulty dealing with their parents' divorce. Introducing third parties makes the transition more difficult for the children. The situation becomes more difficult if there are a series of short term dates that are introduced. While a parent has the right to maintain a social life, there is usually no need to involve the children. If the children are introduced to a date, the children will almost certainly relate this to your spouse. This is likely to cause an adverse reaction from the spouse that may make the divorce more difficult and expensive.

A post-nuptial agreement which is created to try to save the marriage but sets forth terms of alimony and property division in the event of a divorce may be valid and enforceable in Massachusetts. The agreement will be carefully scrutinized by the court and will only be found valid if the court finds that it is fair and reasonable after considering, at a minimum, whether:

• Each party had an opportunity to obtain separate legal counsel of each party's own choosing;
• There was fraud or coercion in obtaining the agreement;
• Ell assets were fully disclosed by both parties before the agreement was executed;
• Each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce;
• The terms of the agreement were fair and reasonable at the time of execution;
• The terms of the agreement are fair and reasonable at the time of divorce.

Most prenuptial agreements will enforced as valid in Massachusetts. If there was full financial disclosure and the agreement is free of fraud and coercion, it will probably be recognized and enforced by a Court. The agreement can't contract away rights of children but the parties can contract away the rights of adults. Generally, child custody and support can't be controlled by a prenuptial agreement. Property division and alimony can be addressed in a prenuptial agreement.

If you don't have a prenuptial agreement the laws of divorce of the state you reside in at the time of your death or divorce will apply to your situation if you divorce, and the laws of inheritance will apply if you die. If you are comfortable allowing the state laws to determine these things there is no need to sign a prenuptial agreement.

Prenuptial agreements are contracts entered into between people planning to get married. The purpose of the agreement is to define for the couple what the disposition of their financial assets will be in the event of divorce or death. In order to be valid they must be executed prior to the wedding. Both parties should have legal counsel and there needs to be a full financial disclosure of all assets of the parties. The agreement will ordinarily be enforced if it is executed properly and there is no fraud or duress involved in its execution. There is case law that suggests that if a prenuptial agreement is signed immediately prior to the wedding that could be evidence of duress. The courts in Massachusetts have also ruled that if at the time the agreement is sought to be enforced, a "second look" would take place to make sure that the agreement is not unconscionable in light of the circumstances at the time you are seeking to enforce it.