Articles by Members

As a service to its members and the general public, MCFM makes available on this site a number of articles written by its members on a rotating basis. Some of these articles also appear in the Family Mediation Quarterly.

MASSACHUSETTS FAMILY LAW

A Periodic Review by Jonathan E. Fields

Postnups OK’d in Massachusetts (or “the Fogg has Lifted”) — Nearly 20 years ago, in the Fogg case, the SJC “left to another day” the question of whether postnuptial agreements were valid in Massachusetts. Well, that day has come. The SJC has finally resolved the long-deferred question by approving such agreements so long as certain requirements are met. Among such requirements, according to the SJC, the court must find that the agreement was fair and reasonable at the time of signing as well as at the time of enforcement. In permitting such agreements, Massachusetts appears to be in line with the majority of states. Readers interested in an in-depth treatment of the new case are directed to Bill Levine’s terrific article at the beginning of this issue. Ansin v. Craven-Ansin, 457 Mass. 283 (July 16, 2010)

Counting Parenting Time (Even When the Kids are Sleeping) — In trying to equalize a parenting schedule, do you count “sleep time” and “school time” or only “awake time”? In a modification action, a Probate and Family Court judge changed the parenting schedule without finding a change in circumstances on the theory that the percentage of “awake time” (time that the “children were not at school, camp, or awake”) spent with each parent was roughly equivalent to the previous schedule. The Appeals Court reversed, noting that the law has not “neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it. Disregarding sleep or school time ignores that children get sick, have nightmares, and otherwise require their parent’s assistance at unexpected times.” Parents are always “on call,” the Appeals Court continued: “[t]he responsibilities of a parent do not end when a child is asleep, at school or day care, or otherwise outside of the parent’s presence.” Katzman v. Healy, 77 Mass.App.Ct. 589 (September 7, 2010).

Imputing Income and Divorce Planning — The Appeals Court affirmed a judgment in which the trial court refused to impute income to a wife who was working an 80% schedule at the time of trial and who was earning an annual salary of over $500,000. The Appeals Court was impressed that throughout the marriage, she had often reverted from full-time to reduced-time and that the current schedule was not the result of “divorce planning.” Lanes v. Jagolta, 2010 Mass.App.Unpub. LEXIS 1069 (September 24, 2010) (Unpublished)

Jonathan E. Fields, Esq., is a partner at Fields and Dennis, LLP, in Wellesley. Jon can be contacted at 781-489-6776 or at jfields@fieldsdennis.com.

WHY I LOVE DIVORCE MEDIATION

By Marion Lee Wasserman

Author's Note: This article is an excerpt from "How I Found Divorce Mediation and Why I Love It." The full article appears in the Fall 2010 issue of the Family Mediation Quarterly ("FMQ").

Not every client getting divorced chooses mediation, but for those who do, the choice is almost always a wise one. Here are four reasons why I love doing divorce mediation and why it works so well.

Simplicity

There is a common-sense simplicity to the idea of divorcing spouses sitting down together to discuss their settlement with the assistance of a trained, neutral third party. This three-way model is the one I use. In my divorce mediation practice, the three-way meetings are the primary vehicle for achieving settlement. Because this model is so simple, it is easy to explain to potential clients; and couples usually do a good job of self-selecting -- that is, recognizing whether or not this process will be a good fit for them. Although the parties may have lawyers working with each of them in the background of the mediation process, the primary dialogue in the process is the couple's own dialogue, at three-way meetings and between meetings, if possible. The divorce is their divorce. The dialogue is their dialogue. The mediator's humble role -- apart from educating the couple about the legal context of divorce -- is to facilitate the negotiation, to give the couple an assist. Though the three-way model is a simple one, the mediator's role is endlessly interesting and challenging.

Flexibility

The spareness of the three-way model makes it easy for the couple to decide, with the mediator's guidance, whether additional professional assistance is required. Professionals with special knowledge and skills -- for example, financial planners, accountants or child development specialists -- can be brought into the process on an as-needed basis. By agreement, the couple can decide whether to work with an outside expert individually or as a couple; and the expert can provide reports and spreadsheets shedding light on complex financial issues. The expert can attend one or more mediation sessions if this will be helpful and cost-effective. Decisions about the use of experts grow dynamically out of discussions at the three-way meetings. The divorce mediation process is never "one size fits all" but is instead an inherently adaptive and flexible process.

Cost-Effectiveness

The three-way model makes for a highly cost-effective process. This is an unquestionable up-side for the divorcing couple and their children.

In the Middle

The first few times I entered a room as a mediator for a divorcing couple, I had to screw up my courage. Sitting down at a table with two people going through wrenching, life-changing conflict was scary. Often, the spouses were angry and hurt and could barely abide being in a room together. But in a surprisingly short period of time, my trepidation at being in the middle disappeared completely -- a tribute to the transformative power of the mediation process, not only for clients but also for mediators themselves. I began meeting each new couple eagerly, with confidence in the mediation process. Whatever the couple's emotional dynamic, I welcomed the opportunity and the privilege of creating a safe space they could enter, where they could work through conflict and get divorced in a cooperative, mindful way. Now I thoroughly enjoy the special challenges of being in the neutral middle.