NO LAW REQUIRES DIVORCING COUPLES TO DIVIDE ASSETS 50/50

By: Anthony C. Adamopoulos, Arbitrator, Mediator, Collaborative Attorney

Recently, a distressed client, I will call Casie, came to me. She feared for her future. Casie explained that her husband wanted a divorce and “claimed” he would “get” his lawful 50% of the house and her pension.

Casie described in her marital history valid reasons why it would not be fair for her husband to get a 50% share.

Massachusetts is an Equitable Division state. This means that a judge must first determine what is equitable (or fair) before dividing the property.

The reasons that Casie offered in support of her belief that a 50/50 split would be unfair were the type of reasons a Family Court Judge would consider in deciding how to divide the value of the family home and a pension.

In order to help a judge decide what is fair (equitable), the law provides a list of certain required considerations a judge is to consider in “fixing the nature and value of the property to be so assigned”* to each party.  The required considerations are:

  1. the length of the marriage,
  2. the conduct of the parties during the marriage,
  3. the age of each party,
  4. the health of each party,
  5. the station of the parties,
  6. the occupation of each party,
  7. the amount and sources of income of each party,
  8. the vocational skills of each party,
  9. the employability of each party,
  10. the estate of the parties,
  11. the liabilities and needs of each of the parties,
  12. the opportunity of each for future acquisition of capital assets and income, and
  13. the amount and duration of alimony, if any, awarded.

In addition, the law says the judge may in “fixing the nature and value of the property to be so assigned” to each party, consider the following:

  1. the present and future needs of the dependent children of the marriage,
  2. the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates, and
  3. the contribution of each of the parties as a homemaker to the family unit.

In reality, judges consider these three factors along with the 13 listed above.

So, the 50/50 rule does not apply in Massachusetts, and the Rule of Equitable Division provides for the consideration of many marital factors before a division is made.

*You can read the actual law by Googling Mass.provides Gen Law C.208, Sec.34

©2018 Anthony C. Adamopoulos

STUCK IN DIVORCE COURT? HERE IS YOUR LAST CHANCE TO CUT COSTS AND AGGRAVATION!

Are you in divorce litigation?

Are you having second thoughts – time standards, discovery cost, no trial in sight? Enough!

You have complained to your attorney and your attorney reports that your spouse’s attorney has heard the same complaints from your spouse.  Your attorney suggests mediation or conciliation.

What is the difference between Divorce Mediation and Divorce Conciliation?

Mediation is an independent, voluntary, confidential process conducted by a mediator, who is neutral. The mediator will:

  • Assist you and your spouse in identifying and discussing those issues keeping the two of you from settlement.
  • Explore with you and your spouse various avenues to resolution.
  • Develop a settlement acceptable to you and your spouse.

The two of you will select the mediator. The mediator’s fees will be split between the two of you or paid as the two of you agree.

The major benefits to Mediation are:

  • The mediation is private. There is no report to the Judge.
  • The mediator will provide all the time you and your spouse need to work on a resolution.
  • Experienced mediators have settlement rates of between 85% and 97%.
  • If the mediation is in the 3-15% that fail, you and your spouse may enter a written agreement (stipulation) stating that all that was agreed to in the mediation shall not be litigated at trial.

The major negatives to Mediation are:

  • The Mediator is paid.
  • If the mediation is in the 3-15% that fail, the parties will have to return to the litigation process for the unresolved issues.
  • Since you are in litigation, you must get permission from the judge to “take a time out” for mediation. Your attorney will handle this.

Conciliation is a court related process in which a court appointed neutral (the Conciliator) assists parties to resolve their case by:

  1. Clarifying the issues preventing a settlement; and then
  2. Assessing the strengths and weaknesses of each side’s arguments; and
  3. If the divorce cannot be resolved, then the Conciliator explores the steps which remain to prepare the case for trial.

The Court usually allocates two hours for the Conciliation session. The Conciliator is not paid, but there is an administration fee, currently $50.00 per party.

The major benefits to Conciliation are:

  • The trained Conciliator will assess your “side” and your spouse’s “side”. You will then be able to consider the assessment in planning your next step, e.g., trial or settlement.
  • The Conciliator does not get paid.

The major negatives to Conciliation are:

  • The Conciliation lasts a short time, contrasted to Divorce Mediation.
  • The Conciliator may report her/his assessment to the Judge and any opinion as to whether someone is not acting in good faith.

What should you do?

Statistically, 97% of divorce litigation will settle within days of the trial. That means, even though you and your spouse each paid an enormous amount of money to get ready for trial, it may never happen (97% of the time).

The sensible thing is to avoid more costs now, stop the litigation, and settle your differences in mediation or arbitration.

©2018 Anthony C. Adamopoulos

My Advice for Divorce Month

By: Anthony C. Adamopoulos, Divorce Arbitrator, Mediator & Collaborative Lawyer

 

Divorce Month is almost here. In 2016, I saw one of the saddest, unnecessary, adversarial divorces ever. The cost in emotions, future harmony and money was enormous and unnecessary.

So again, I urge everyone who is facing divorce to consider seriously staying out of the public adversarial divorce system. It will hurt and it will hurt way into the future.

Staying out of the “system” generally means choosing one of two processes, either confidential mediation or confidential Collaborative Divorce. Take the time to read about these important confidential divorce approaches at The Three Approaches to Divorce.

If the two of you agree on only one thing, let it be that you will use confidential mediation or confidential Collaborative Divorce.

Hand in hand with the right approach is the right lawyer. Not all divorce lawyers are qualified to do divorce mediation or Collaborative Divorce. Mediation requires training and success. Collaborative Attorneys need to be certified. Believe me, this is not the time to go to your third cousin’s friend’s real estate lawyer.

 

For more information about Divorce Mediation and Collaborative Divorce:

The Three Approaches – Graphically

The Massachusetts Collaborative Law Council

The Massachusetts Council on Family Mediation

The Divorce Center