IF WE GO TO COURT, WILL OUR PROPERTY BE DIVIDED DOWN THE MIDDLE?

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

No. Massachusetts is an Equitable Division state. This means a judge determines what is a fair division of the assets and it may not be 50/50.

The law provides a list of certain factors a judge must 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” 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.

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

 

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

©2019 Anthony C. Adamopoulos

ANTHONY C. ADAMOPOULOS AMONG TOP 10 FAMILY LAW ATTORNEYS IN MASSACHUSETTS

Topsfield divorce attorney and mediator Anthony C. Adamopoulos is pleased to announce that Attorney and Practice Magazine has ranked him among the top 10 family law attorneys in Massachusetts.

Attorney and Practice Magazine is a quarterly publication “addressing law firm management, attorney well-being, work/life balance, and the ever-changing technology that impacts a …practice.”  The List recognizes the significant achievements of those attorneys whose practice elevates the standards of the Massachusetts’ Bar.

ANTHONY C. ADAMOPOULOS’ DIVORCE RESOLUTION SERVICES  

(978) 744-9591

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© 2019 Anthony C. Adamopoulos

 

Facing Divorce? Here are Some Basics…

By Attorney Anthony C. Adamopoulos – Collaborative Attorney, Divorce Mediator and Divorce Arbitrator

For those facing divorce, the summer is often a time of “thinking about it”.

Well, here is something to think about.

There comes a time when a person must stop looking to the past and begin to picture the future. If that future means divorce, then some real consideration must be given to moving into the future without needlessly spending monies that could be used for other needs.

Here are some basic suggestions:

  1. Join with your spouse in the joint self-serving purpose of “getting through this” by concentrating on the future. Because — when a divorcing party seeks to punish the other, everyone feels the pain.
  2. Consider avoiding the court process by using Mediation, Collaborative Divorce or Divorce Arbitration (see my website for more information on these dispute resolution procedures – DivorcingOptions.com).
  3. Recognize that options 1 and 2 may be difficult because the other spouse may be what professionals call “The Reluctant Spouse”. When this is the case, be sure the professional with whom you work is familiar working with and winning over The Reluctant Spouse.

Good luck,

Anthony 

© 2019 Anthony C. Adamopoulos

 

ANTHONY C. ADAMOPOULOS’ DIVORCE RESOLUTION SERVICES  

(978) 744-9591

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#DIVORCE

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A Question Often Asked – Will I have to pay both child support and alimony?

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

Generally, alimony will not be granted where total family income does not exceed $250,000.00.

Over this amount, the judge first determines if there is a need for alimony. To do this, the judge considers the income of each party. (The person receiving child support includes it in their income. The person paying support deducts it from their income.)

The judge then determines the reasonable need of each party and if each party’s income covers need. Need is based upon the standard of living of the parties when they were living together.

If income does not cover need, the judge will try to divide the total income so that each party can meet their respective need. When there is not enough money to meet respective need, the judge will have the parties share the deficit. The judge will consider certain guidelines in doing this.

#DIVORCEMEDIATION
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#COLLABORATIVEDIVORCE
#ALIMONY
#CHILDSUPPORT

ANTHONY C. ADAMOPOULOS’ DIVORCE RESOLUTION SERVICES  

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© 2019 Anthony C. Adamopoulos

 

Divorce Arbitration is the Way to Go! So……

A decision of our Appeals Court, Gravlin v. Gravlin, is helpful for those facing divorce.

For collaborative divorce attorneys and divorce mediators, the decision confirms that arbitration is the viable alternative to court litigation for resolving a single issue or even taking the place of a full court trial.

In Gravlin, the Appeals Court acknowledged “… arbitration has long been recognized as a valid means of resolving disputes between divorcing parties.” This Blog has often praised the value of arbitration as an alternative to divorce litigation; with Gravlin, the Appeals Court stamped an imprimatur of sorts on divorce arbitration.

While arbitration is available to replace a public court trial, it is also available if collaboration or mediation reaches a deadlock (a stalemate on one or two remaining issues); then, it is time for divorce arbitration.

When parties follow a simple process, the Appeals Court promises a “… strict standard of review [that] is high[ly] deferential…” to an arbitration award.

What does the simple process involve? The simple process requires that:

  • Respective counsel advise each party.
  • Parties freely enter an Agreement to Arbitrate.
  • Parties knowingly waive a court trial and submit to arbitration.

If there is any trial court review of an arbitration award, the review will be limited to determining:

  • The arbitrator’s award was confined to what he/she was asked to decide;
  • The award did not give relief that is prohibited by law;
  • The award is not based on fraud, arbitrary conduct, or procedural irregularity in the hearing.

(In my experience, the selection of an experienced, knowledgeable arbitrator will result in a positive review and enforcement of the award.)

For collaborative attorneys and mediators, Gravlin is another reason to recommend arbitration for settlement stalemate.

For parties facing divorce or divorce stalemate, arbitration is an alternative to a costly, lengthy and publicly litigated trial.

*Anthony is a divorce arbitrator, collaborative attorney and divorce mediator. His office is in Salem.

© 2016 Anthony C. Adamopoulos

 

Mediation and Arbitration of Temporary Orders in Divorce by Howard Goldstein, Mediator and Collaborative Divorce Lawyer

For some time now, from time to time, I have sat in Family Court and watched as the ‘Motion Session’ played out. Litigants waiting, sometime for hours, to get “five minutes” to argue, for example, why Plaintiff needs “support” and why Defendant believes Plaintiff should not get the support. Or perhaps, mother and father have taken a day off  from work to each argue why the kids should be with them for Christmas.

There is a better and wiser way and my colleague Howard Goldstein has explained it well in his article, reprinted below.

The traditional start to a divorce case in Massachusetts is the filing of a complaint, service of a summons and scheduling of temporary orders. The temporary orders are designed to tide over the parties with custody and financial orders that maintain the status quo, or at least the peace, until the case is ready for trial. In Massachusetts a contested no-fault divorce cannot be scheduled for trial any earlier than six months after filing of the complaint, but in practice it usually takes more than a year to get a trial. Because we have a single calendar system now, the judge who decides the temporary orders is likely to be the same judge who presides at trial. For that reason, the decision on temporary orders can determine the entire course of a case and have a major impact on the outcome.

The decision to promptly proceed to temporary orders carries some serious risks however. It is not likely that meaningful discovery will have taken place before the hearing, the clients and lawyers are new to each other, and the tensions and drama attendant to the early stages of a divorce combine to make it more likely that the Judge at the temporary order stage will get it wrong. It is never clear at the outset which party will benefit from the riskiness of the process. It is very difficult once a temporary order is entered by a judge to get it modified. So with a year or longer to a trial, a bad result at the temporary order stage could create undue pressure on at least one of the clients, to either capitulate and settle, or escalate the litigation to try to force a more favorable result. All of this comes at great expense both financially and emotionally. The family can be effected for generations by a hastily convened hearing on temporary orders.

Even in a case that will eventually go to trial, mediating or arbitrating at the temporary order stage can be quite beneficial. Consider the following:

  1. A settlement arrived at by mediation may, by agreement, not be filed in Court and therefore the parties will not prejudice the trial judge one way or another.
  2. Even if the parties wish to file the settlement in Court, the stipulation can be clear that it is without prejudice to a future contested motion for temporary orders. Since the trial judge did not make the decision and it’s a settlement, it will be more likely that it can be modified if circumstances change and it does not reflect the point of view of the trial judge, so that the settlement negotiations, or the trial, if necessary, is much more of a “blank slate” process.
  3. The stipulation for temporary orders can recite a short period of time during which it is operative: perhaps 3 months or 6 months, to give the parties time to negotiate a comprehensive settlement after all discovery has taken place and everyone has access to all relevant information.  Unlike in litigation, in mediation there is no winner or loser, so neither party will feel they have an edge or an advantage, contributing to a better negotiating climate for final resolution.
  4. Typically a Motion for temporary orders will get 15 or 20 minutes of a judge’s attention in Court. The parties can devote as much time as they want to the mediation.
  5. If the parties are unable to agree on temporary orders with the assistance of a mediator, they can agree to arbitrate—in that case a neutral person is given the power by the parties to make the decision. There is a process that is called Med/Arb in which the parties make a good faith effort to settle their motions with the assistance of a mediator, and if its not possible, the same mediator can be authorized in advance to just make a decision after a certain amount of time has passed. Such a process creates incentives to settle, but also gives the parties confidence that if they can’t reach an agreement someone will make a binding decision. The parties can agree in advance with an arbitrator to boundaries that will make the process less risky. For example, the arbitration can be what is called a high low arbitration. The parties set the boundaries within which the decision will be made. So the arbitrator can be authorized to set alimony but it has to be within a predetermined range, acceptable to both parties, or it can be limited to a period of time, such as three months or six months. None of this flexibility is available at a hearing on temporary orders before a judge.

If parties are willing to be creative there are many opportunities to come up with a dispute resolution process that is more client friendly and more flexible than what is available in the Courts. In my experience mediation is most often considered only at the end of a case when it is close to a trial date. This may come from a misguided assumption that appearing too eager for a settlement is a sign of weakness. The opposite is true. Mediating or arbitrating the temporary orders stage of a case make it more likely that the case will settle in its entirety. Clients and opposing counsel can see through posturing. Demonstrating thoughtfulness and creativity in reaching solutions will be respected by your opposing counsel and appreciated by your clients.

 

Howard’s office is in Newton.  Thank you, Howard. 

HOW TO USE DEADLOCK ARBITRATION

PART TWO

STALEMATE - RAM HEADS

For PART ONE – WHY CONFIDENTIAL DEADLOCK ARBITRATIONsm

Making the decision to arbitrate:

  • Deadlock Arbitrationsm can be used to resolve deadlock arising out of the Collaborative or Mediation process.
  • After deadlock, attorneys discuss arbitration with their clients. Pro se litigants discuss arbitration between themselves.
  • If all agree, an Arbitration Agreement is executed.

The basic arbitration agreement provides for:

  • Confidential and private proceedings;
  • Discretion;
  • Issue selection and limitation;
  • Binding awards (there may be a high/low agreement);
  • Any other provision agreed upon;
  • The admission of all evidence which is then given the weight determined appropriate by the arbitrator; and
  • The time and location for the arbitration hearing.

Benefits of arbitration:

  • Provides privacy – for example, hearings are not open to the public.
  • Provides confidentiality – for example, testimony and documentary evidence are not available to the public.
  • Avoids unnecessary costs – for example, affidavits may be used instead of in person expert testimony.
  • Avoids unnecessary delays – for example, there are no unexpected court like delays.

Points to consider:

  • Speed – hearings can be scheduled within days and decisions awarded within weeks.
  • Single issue determination – arbitration can be used to resolve only one issue, e.g., the final “sticking point”.
  • Arbitration awards are generally not subject to appeal.

 

WHY CONFIDENTIAL DEADLOCK ARBITRATION?

PART ONE

CAT & DOG - STALEMATE

 

What is Deadlock Arbitration?

Deadlock Arbitrationsm   is a private confidential process that avoids the need to “change over” to public court litigation when divorce mediation or Collaborative Divorce reaches a total breakdown.

What causes deadlock?

Deadlock results from a party refusing to move from a position. For example, consider this scenario:

After negotiating for a period, all issues have been resolved, except for one – the wife’s recent inheritance from her father’s estate.

The wife says, it is hers. The husband says, he wants his share.

Neither party will compromise. They are deadlocked!

A lot of pain and effort went into getting agreement on everything but this one issue.

Think about it! Only one issue prevents a resolution.

Do the parties now have to leave Mediation or the Collaborative Process and go into court litigation?

N0.

How does Deadlock Arbitrationsm work?

In Deadlock Arbitrationsm, the parties “hand pick” an arbitrator to decide the one issue.

“Their” arbitrator travels to a location selected by the parties. There, in a confidential format, totally designed by the parties (with the help of their respective attorneys or their mediator), the arbitrator listens to the presentation of each side.

The arbitrator, within an agreed upon period, makes a decision on the deadlocked issue and the parties move on.

See Part Two  for:  HOW TO USE DEADLOCK ARBITRATIONsm