Blogs
Welcome to the Central Mass Mediation Blog. Here we will post news and information about Mediation
The Divorce Process in Massachusetts
Social Security Benefits and Divorce
Most divorcing and divorced couples are unaware of the benefits that are available to them through social security. For example, did you know that if a couple has been married for more than 10 years and the lower earning spouse has not remarried, that person is entitled to at least one-half of the benefit paid to higher-earning spouse? Did you also know that this same, unmarried, former spouse would receive 100% of the benefit paid to the higher wage earner if that person dies before the recipient? This is true even if the deceased, higher-earning, spouse has remarried.
Moreover, the higher-earning spouse’s benefit is not reduced whatsoever if the lower-earning spouse receives the 50% spousal benefit. It doesn’t matter whether the lower-earning spouse ever worked or contributed to Social Security.
For more detail about this topic, and additional information click on this link or copy and paste it into your browser URL : http://www.socialsecurity.gov/retire2/yourdivspouse.htm
Health Insurance 101 for Divorcing Couples
The topic of health insurance coverage for a former spouse in Massachusetts can be very complicated, and even the representatives in Human Resources departments of many companies are not clear about this topic. In general, if the provider spouse works for a conventional Massachusetts employer and maintains family coverage, most divorced spouses are entitled to continuing health benefits at no additional cost until one of them remarries. But the list of exceptions is long. Here are some of the most common situations where coverage for divorced spouses may not apply:
• The provider spouse works for the federal government or federal agency (including the armed forces);
• The provider spouse works for a church organization;
• The provider spouse’s health insurance is provided by a union (i.e., “Health
and Welfare Benefit Fund”);
• The provider spouse is retired and health coverage is part of his or her retirement benefits;
• The provider spouse works for an out-of-state company with fewer than 11 employees or an office in Massachusetts which elects to be a “non-contributing” employer;
• The provider spouse works for a self-insured company, i.e., one that does not purchase a conventional health benefit plan from an insurance company (these can be difficult to uncover because self-insured companies often subcontract to insurance companies to administer their benefits);
• The provider spouse does not reside in Massachusetts;
• The provider spouse changes jobs after the divorce.
Although the list of exceptions appears to be daunting, the majority of divorcing couples still fit into the general rule and have continuing coverage. However, it is wise to find out in advance if you will have continuing coverage or not. When in doubt about your eligibility for continuing coverage, you should obtain a copy of the “Summary Plan Description” from the employer and study it carefully or consult an experienced lawyer.
There are a few additional issues you should be aware of:
• Even when continuing eligibility is not available under the Massachusetts statutes, federal COBRA coverage should normally be available to provide continuing coverage for the divorcing spouse, however, COBRA costs money, and coverage may lapse if not timely paid.
• Massachusetts has a “mini-COBRA” law which provides additional coverage to employees of small companies (2-19 employees);
• Some employers are withholding extra income tax from the provider spouse’s paycheck as a result of former spouse coverage. This is caused by “imputed income” rules and the jury is still out on whether this is proper or not.
• Many health insurance companies now offer single parent plans for a smaller premium than the full family plan.
• In some cases where continuing coverage is not available, a rider may be available to provide continuing coverage at affordable cost.
Careful planning during the divorce process and proper language in the separation agreement can eliminate surprises and maximize your options.
To learn more about health insurance coverage for former spouses, contact us today to schedule a free half-hour consultation about this and other divorce topics.
When mediation talks break down . .
It is not uncommon for divorcing couples to work through almost all of the issues between them and then reach a stumbling block when the end is in sight. Sometimes there are legitimate reasonable differences, but other times, anger and hostility can work their way in. When this happens, many couples are tempted to abandon mediation.
Skilled mediators are accustomed to these situations. Often, we will advise clients to take a break, give themselves a bit of breathing space, and return to mediation when it makes sense to resume the discussion. Usually, this and other tools we often employ to navigate around roadblocks, will work to break through the impasse and bring the parties back to the table.
Sometimes, however, one party has, for whatever reason, dug their heels in and refuses to budge on a position. When a mediator is unable move the parties along in this situation, there are still other options to explore in an effort to resolve the dispute without contentious litigation.
Arbitration is one method that often effectively resolves cases with a small number of issues or narrowly defined concerns. Often, the parties will have resolved much of their case with their mediator, and submit only one or two issues for determination by the arbitrator. Arbitration comes in two general forms: binding and non-binding. In binding arbitration, the parties agree in advance to be legally bound by the arbitrator’s decision. In non-binding arbitration, the parties make their case to the arbitrator, but agree only to use the arbitrator’s decision as guidance for influencing further negotiations. The parties can select which form of arbitration suits their needs, and can further customize the process even more.
The arbitration can be conducted in the mediator’s office using a mutually agreed upon arbitrator who has no involvement with the case and has the appropriate professional background to render an informed and impartial decision. Often another skilled mediator is selected, but experienced divorce lawyers and even retired judges are also available. In some situations, the parties may agree that their own mediator may serve as the arbitrator. This is a much more timely and cost efficient method of dealing with a roadblock than abandoning mediation, hiring lawyers to litigate and starting the process all over again. The cost of litigation can be several times the cost of mediation and can drag on for years, but most importantly, the parties often feel their voices were heard and their concerns were addressed more thoughtfully in mediation than in litigation.
For example, one of our colleagues recently arbitrated a dog custody case. The Husband was moving to California, and the Wife staying behind in Massachusetts. Because of the long distance, it was not possible to work out a shared custody arrangement (which many pet owners do). This, unfortunately, compelled a “winner take all” result. Despite the “all or nothing” stakes, the parties were extremely happy with the arbitrator’s determination because they were both satisfied their voices were heard and their concerns were weighed. The parties were willing to pay a little extra for the arbitrator to prepare a short but thoughtfully written decision which assured them that all issues were carefully considered and the decision, while not a victory to one party, was fair. In mediation, also, the perception of the fairness of the process determines the parties’ satisfaction with the result.
I don’t need a parenting class . . .
Couples who choose mediation are usually more respectful toward one another and are more likely to avoid disagreements over parenting issues than litigating couples. However, there is valuable information in the parenting class if you approach it with an open mind. I’ve actually been through it, and have seen the value to my clients in my divorce mediation practice.
The focus of the parenting class is not to tell you how to raise your kids. Instead, the course will teach you basic facts and skills which many of us simply do not know. For example, they will teach you how children of different age groups react to divorce (i.e., for younger children, it is much the same experience as grief after the death of a loved one). I am sure you will find it interesting to learn how pre-teens are different from younger children and teenagers in this regard, and what you can do to help them understand, ease through the transition, allow them to express themselves, and prevent flare-ups. They also give nuts-and-bolts advice and simple logistical suggestions you may never have thought of that help avoid conflicts and make everyone’s life more harmonious. For example, when transitioning for changes in parenting time, it’s best if one parent drops the children off at the other parent’s home instead of a parent coming to pick the children up. That way, the children are packed with backpacks, school books, homework, i-pods, teddy bears, etc., and ready to hop out of the car and into the other parent’s home. Otherwise, a parent may be frustrated and humiliated waiting in the driveway while the kids futz around getting ready, and that frustration gets projected onto the other parent and an angry confrontation develops. A simple little trick that avoids a great deal of conflict, yet many divorcing couples never learn about it. And there are more. Some programs show a brief film about divorce as told by actual children involved. Most parents find it very eye-opening to hear the voices of these children and learn of their perspective and true feelings.
Not all parenting programs are created equal, they are operated by contractors in different regions, but the curriculum is fairly standard. You should have a rewarding experience, at least worth the effort of attending and price of admission. — Mike Tremblay
How do I choose a divorce mediator?
Most mediators offer a brief free consultation. You should feel free to take advantage of this opportunity to meet with a few mediators to make certain that you feel comfortable with and confident in the skills of the mediator. In this consultation, make the mediator aware of any issues that you feel may require some special expertise on the part of the mediator. Mediators in Massachusetts are qualified to offer confidentiality if they have completed the thirty hour statutory training and are members of an organization with a code of conduct. Be certain that the mediator that you ultimately decide to work with has these credentials.
The mediator does not need to be a lawyer. Non-attorney mediators learn about the applicable laws and practices of the probate court and are able to share this information with their clients. No mediator, lawyer or not, may give legal advice in the course of mediation. In this regard, there is little difference between the attorney and non-attorney mediator.
Parties need to feel comfortable with the mediator. It may be the background of the mediator that makes the difference for you. Non-attorney mediators tend to have a background in mental health, social work, or education. Typically they tend to focus on empowering clients and have expertise in parenting and family issues. Attorney mediators tend to focus on legal issues and present solutions to their clients. Obviously, there are mediators who combine great people skills with legal knowledge. This is the person that you would like to work with on this very important process.
Kudos to one of our staff members!
Attorney Michael J. Tremblay has recently developed the Mass. Child Support Guidelines “app” for the android smart phones. The Mass. Child Support Guidelines are not easy to work with. Here is an app for family mediators and attorneys who are interested in an easy to use, time saving application that goes with you to court or a mediation session. Follow the link below to learn more: http://www.attorneytremblay.com/app.html
Mike is also interested in developing a version for the iPhone, so for all of you dedicated Apple fans, please check back.
What happens to mediation if my spouse gets angry and refuses to consider my rights? Won’t I need an attorney, who is used to arguing with parties, to look after my interests?
All mediators are well trained in working with angry parties and have strategies for managing discussions that become heated. It is the mediator’s responsibility to see to it that the rights of both parties are protected and that the discussion continues in an emotionally safe environment. All parties deserve the right to suggest solutions in an supportive and “risk free” environment. There is no need for the combative and aggressive posturing of a litigation attorney in mediation. In fact, the presence of such an individual is counter productive to the mediation process.
However, many people find it helpful to retain the services of a “mediation friendly” attorney. These attorneys work with parties outside of the mediation process and will work with the individual to review the terms of the agreement as it evolves during the mediation process. This attorney would also provide legal advice. At Central Massachusetts Mediation, we have a list of such professionals and are happy to make that information available upon request.
What is Family Mediation?
Family mediation refers to a wide spectrum of services available to families in need of conflict resolution. There are many situations in which the services of a mediator can be helpful. Updating parenting schedules post divorce is one such situation that immediately comes to mind. Family mediation also provides the older, but unemancipated, children of divorcing parents the chance to discuss their suggestions for shared parenting and living arrangements.
Arranging care for and support of aging parents is another very emotional and difficult issue for many families. Working with a mediator provides each of the family members the opportunity to voice his/her concerns. The mediator can also facilitate a conversation to help the family develop plans and strategies to handle the logistics and the decision making process regarding care for their loved ones.
Some families might also appreciate the help of a mediator when it comes time to distribute some of the personal property of a deceased relative. While the will stipulates how the property and financial assets will be divided among the heirs, there are often personal items of great sentimental value that many family members would like to own as a keepsake. When several members of the family attach great value to the same article, the mediator can help the family devise a plan that meets each person’s needs.
The services of a family mediator can be particularly useful when family members have moved out of the area but are still very involved in the care of aged relatives or other issues facing the family. Many mediators will create a virtual meeting, or some other form of technology to allow all of the stakeholders to be present at the facilitated discussion, allowing each interested person the opportunity to be involved in the decision making process.
In a mediated divorce when there is no judge ordering a division of our property, how does a divorcing couple divide their finances and property?
For most couples, the division of financial assets and debt is the scariest issue when contemplating divorce. The harsh reality is that most families experience at least a temporary period of financial regrouping as they work through becoming accustomed to working with a changed set of income and expenses. The goal of the mediation process is to help spouses maximize the family’s financial situation as they establish two households. The division of assets needs to be fair and meet the individual needs of the family, but does not need to be a strict 50/50 split. This includes the division of pension funds and inheritances. State law provides guidance in this area, setting out several factors which are to be taken into account when assets and liabilities are divided in a divorce, among them are the length of the marriage, how long the couple has owned the property/debt, and how this property was used by the couple. Mediators understand these guidelines and help couples divide their property in light of these guidelines. Mediation allows couples to stay in control of the terms of their agreement, arriving at division which makes sense for them.
Mediators are familiar with state guidelines for spousal support and child support. The attorneys Ms. O hEigeartaigh retains will work with clients to divide pension funds and prepare the necessary QDRO paperwork for the court.