Ludwig v Ludwig

February 14, 2017 by  
Filed under Alimony, Divorce, Recent Articles

by Matthew Solomon, Esq.

Ludwig v Ludwig, 15-P-1177 (slip opinion) (2017).

Massachusetts Appeals Court case in which husband appealed a Probate Court’s alimony decision to include unvested stock options as income that had not been included in the parties’ equitable division after the implementation of the time rule laid out in Baccanti v Morton.

The Appeals Court affirmed the Probate Court’s decision on the issue of double-dipping, stating that, “Here, there is no such injustice because the contested shares were not part of the equitable distribution of assets; by operation of the time rule, they were assigned to and retained by the husband outright.” In other words, precisely because the shares were not part of the division of marital assets, they could then be considered a source of income when calculating alimony. The Appeals Court further pointed out that the income for the source of the property assignment was distinguishable from the source of the alimony obligation.

The husband also contested the Probate Court’s ruling as to what date to use under the time rule when determining the value of the unvested stock options. The basic idea is that the later the date used to determine the value translates into a greater number of shares available for distribution. The Probate Court ruled that the date to be used was the date closest to the when the hearing was actually held on the parties’ contested issues because the court found that neither party had acted in any way to drag out the case. The husband argued that the Probate Court should have used the date closest to the date that the parties separated, which was about a year and half prior, arguing that the Probate Court did not make any findings on the wife’s “contribution to the maintenance of the unvested options” subsequent to the parties separation because the parties did not provide evidence or testimony as to the wife’s contribution during that period. The Appeals Court affirmed the Probate Court’s decision as to which date to use under the time rule, stating that the judge was not limited to only considering financial contribution to the acquisition of assets and referenced the language of M.G.L. c. 208 § 34 that identifies the different types of contributions that parties may make to a marriage.

The court discussed situations in which property has been divided, and nonetheless, income earned from the part of the property retained by a husband was part of the income subject to alimony. The court cited two specific cases: In Adams v Adams, 459 Mass. 361 (2011) the SJC supported the ruling of the trial court to identify a husband’s partnership interest as a marital asset to be divided and valued, and to also include any expected future income from this interest when calculating child support. In Champion v Champion, 54 Mass. App. Ct. 215 (2002), the Appeals Court affirmed the ruling of the trial court that assigned a value for husband’s interest in his business for the purposes of division of marital assets, and then considered any future earnings from this business when determining husband’s support obligations.

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Words Matter: Pfannenstiehl overruled by Supreme Judicial Court

October 14, 2016 by  
Filed under Divorce, Featured

by Matthew Solomon, Esq.

In one of the most awaited and watched divorce cases of this past year, the Supreme Judicial Court has overturned a lower court’s decision in the case Pfannenstiehl v Pfannenstiehl that a husband’s beneficial interest in an irrevocable, discretionary spendthrift trust should be included as a marital asset in a divorce. In its unanimous rejection of both the Appeals Court and the Probate judge’s rulings, the SJC has made a clear statement about trust interest and marital property in Massachusetts.

At the heart of the SJC’s decision was that the husband’s interest in the trust was merely an expectancy. The SJC found this to be so because the husband was a member of an open class of beneficiaries with changing needs. The class of beneficiaries was “open” as it consisted of all the issue of the husband’s father, in any generation (at present time 11). As such the number of beneficiaries could increase or (decrease) due to deaths and births. The court called it a “discretionary” trust which creasted “nothing more than an eligibility for distributions.” The SJC distinguished the present case from Comins v Comins, which the wife’s argument relied upon, because in Comins the divorcing wife was only beneficiary of the trust.

In addition, the SJC found that the language of the trust gave the trustees total discretion as to whether to make distributions to any of the beneficiaries and in unequal proportions. The beneficiaries had no right to income or principal, and the trustees could distribute funds to them in unequal portions. In fact, until the divorce, the husband and his siblings received distributions, the husband receiving a total of $800,000 from the trust during the period April, 2008 until August 2010. The husband’s distributions ended upon his filing for divorce.

The SJC’s ruling was in direct contrast to the Appeals Court’s decision. The Appeals court found that the trustees manipulated the trust by terminating the husband’s distributions upon the filing of the divorce complaint. One of the other important aspects of the lower court’s ruling was its determination as to how to value the husband’s interest in the trust. The lower court had ruled that the husband’s share of the trust should be calculated as 1/11 of the trust assets and awarded 60% of that value to the wife.

As discussed above, the fact that there was an open class of beneficiaries helped convince the SJC that the husband’s interest could not be determined. The SJC noted the discretionary aspect of the trust, and that the intent of the trust settlor was not to benefit the wife. The SJC further determined that the support language of the trust (the trustee had total discretion to use trust principal or income for a beneficiary’s “comfortable support, health, maintenance, welfare and education”) did not create a “present enforceable right to distributions” for the husband because there were 10 other beneficiaries who had changing needs as well as potential future beneficiaries. This made valuation of the husband’s share of the trust speculative.

The key distinction between the SJC and the lower court is what each focused on to determine the donor’s intent. The lower court’s decision that the ascertainable standard in the trust actually required that the trustees make distributions seemed to be based more on the unpleasant facts of the case then on the intent of the donor. The SJC examined that same language of the trust and found that this standard did indeed limit the trustees’ discretion and that it was the donor’s intent to benefit his children and later generations. By doing so, the SJC reaffirmed the established law regarding intent and trust language. This is a relief to those who draft trusts for the purpose of “asset protection,” as the lower court ruling seemed to question the reliable and standard language employed by these drafters to shelter their client’s assets.

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Why Write A Will – Basic Estate Plan

September 1, 2016 by  
Filed under Estate Planning, Featured

by Laura E. Days, Esq.

“In her first effort at being very, very good, she decided to make her will, as Aunt March had done, so that if she did fall ill and die, her possessions might be justly and generously divided. It cost her a pang even to think of giving up the little treasures which in her eyes were are precious as the old lady’s jewels.”

– Amy’s Will – Chapter 19 – Little Women by Louisa May Alcott

If you own something, you have an Estate: your own collection of personal treasures.

A checking account, car, home, retirement account, art collection; life insurance policy, savings account, pet, furniture, jewelry: these items and more form the basis of your Estate. Even if your Estate is modest, you have wishes and values that you want communicated in the event of serious illness or your death. You need a plan.

Contrary to common wisdom, estate plans are not only for wealthy people. An estate plan protects and distributes your property based on your wishes and the needs of your family. Also, it will ease part of the burden for your loved ones during difficult times.

Through the process of estate planning, your attorney assists you in defining your goals and creates the documents needed to ensure that your wishes are carried out, that your property is disposed of as you would like, and that your family is protected.

The basic estate plan includes documents such as a Last Will and Testament, a Health Care Proxy, a Durable Power of Attorney, a Living Will and possibly also a Living Trust. Each document has its own specific purpose in reaching the general goal.

Last Will and Testament
A Will distributes your property to specifically named individuals, trusts, or charities based on your preferences. It allows you to nominate a person whom you trust – an executor or personal representative – to carry out these wishes after your death. This person is legally obligated to act in your interests after your death following the instructions provided in your Will.

Without a Will, the laws of intestacy will govern how your Estate is distributed. A Probate Court judge will appoint someone to make decisions for you, and your wishes may not be carried out as you would have liked, but rather as the law states that they should or as your personal representative guesses.

For example, many people are surprised to learn that if they are married and die without a Will (intestate), their property might not simply go to their spouse. It may be divided between their spouse and their children, even if the children are minors, or between their spouse and their parents or other relatives.

Speaking of children, one of the most important decisions that you make in your Will is to nominate a guardian for your children. If you die without naming a guardian to care for your young ones, the probate judge will make the determination of who should raise your children. While great care is taken to find the best person most likely to act in the best interests of your children, not naming a guardian puts the children at risk of court-battles, family disputes and potentially even foster care. While your nominee may not ultimately assume responsibility of your children, when you name a potential guardian you give the court a clear directive of your wishes. In addition, when determining who you would prefer as a guardian, plan for an alternative guardian if your first choice is unable to serve.

Durable Power of Attorney
A Durable Power of Attorney allows you to nominate a trusted family member or friend to act on your behalf as an attorney-in- fact. This person will be authorized to handle financial and business transactions including paying bills, filing your income tax returns, moving money for you, hiring home health aides or others, or selling real estate if you are incapacitated or otherwise unable to do it yourself.

Health Care Proxy
Much like a Durable Power of Attorney, this document allows you to designate someone you know and trust to act on your behalf with regard to your medical care. In the event that you are either unable to communicate your wishes or do not have the capacity to make medical decisions, your health care agent will do so for you. Your agent’s decisions will have the same authority as yours would.

When making the decision about who should be your health care agent, you should take into account your own religious and moral beliefs, and choose a person most likely to carry out your wishes or, in the absence of stated directions, make decisions for you based on your best interests.

It is extremely important that you not only talk with your agent about your specific wishes, beliefs and philosophies relating to your health care, but that you also find a second person whom you feel could act on your behalf. You may wish to consult with your doctor, religious advisor, and trusted loved ones before you make a decision.

Your agent will work with your health care team, seeking their advice and counsel prior to making any choices that would affect your wellbeing. Only after considering all options regarding diagnosis, prognosis, and treatment of your condition, will your agent either consent to or refuse medical treatment. He or she will have access to your medical records, as you would, in order to make informed decisions.

Living Will
A Living Will – a witnessed statement of intent, indicating that if you ever become permanently unconscious or have irreversible brain damage with a severely diminished quality of life that you would not want to have tube feeding, hydration, mechanical respiration, antibiotics, or cardiac resuscitation – is an important document for your health care team and agent to have. It acts as a guide for them and as evidence of what your wishes relative to end of life care would be if you were ever in that condition and could not communicate for yourself.

Living Trust
A Living Trust is an excellent tool for managing money, paying bills (including college tuition), and making sure basic needs for the children are met if both parents die before their children are grown up and mature enough to handle their inheritance. You will nominate Trustees to oversee the money, and make distributions to care for your children. The Living Trust is not part of your Last Will, therefore there is no need to file costly and time-consuming annual accountings with the Probate Court, and more money will go to your children. Once your children reach a mature age, they will begin to receive portions of their inheritance outright from the Trust.

Alternatively, a Trust could be used to manage real estate or other assets in case of your own incapacity, and to direct the passing on of assets after your death. This makes a Trust a versatile tool for those who are terminally ill or forsee a time when they might no longer wish to manage their own assets as they age.

No one wants to contemplate his or her own mortality. However, forming and executing a basic estate plan will provide you with a sense of tranquility and satisfaction for having provided your loved ones with clear evidence of your wishes and esteem. Your plan will speak for you and, in a not insignificant way, assist them in dealing with your illness, incapacity, and death.

“I felt I ought to do it, for life is uncertain and I don’t want any ill feeling over my tomb.”

Amy’s Will – Chapter 19 – Little Women by Louisa May Alcott

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New Standing Order about Parent Education Course from the Massachusetts Probate and Family Court

May 12, 2016 by  
Filed under Recent Articles

by Matthew Solomon, Esq.

On April 11, 2016, Chief Justice Angela M. Ordoñez signed Standing Order 2-16, Parent Education Program Attendance. The new Order, which takes effect on May 1, 2016, makes some significant changes to the already existing rule that requires divorcing parents of minor children (children under 18 years old) to attend a Parent Education Program. There are Parenting Programs located in every county of Massachusetts. The Program consists of two 2 ½ hour long classes, which most often begin sometime after 5:00 p.m. (some programs have morning classes). The parties may not attend the same class and each party is responsible for paying $80 for the class fee.

The most important change that the new Order makes is that parties are now required to register with an approved program within thirty days of service of the original divorce complaint. This is a huge change from before, where there was no such time limit requirement of the parties. Prior to Standing Order 2-16, parties were required to attend and provide proof of completion in a program before the court would grant a divorce judgment. This would often mean that divorces were actually delayed because one or both of the parties had not fulfilled this obligation. In other words, this new onus on the parties may help expedite the entire process. A couple of things to note related to the new 30 day requirement: (1) Once a party is registered for a program, she/he must file an Affidavit Confirming Registration at Parent Education Program with the court; and (2) parties have to file their Certificate of Attendance with the Court no later than thirty days after finishing the program.

Similar to before, parties do have the option to petition the court for a waiver so that they do not have to attend a parent education program. This is done by filing a Motion to Waive Attendance at a Parent Education Program. The party must include the reason(s) why they cannot attend a program. The Order states that the court will grant the waiver “upon a demonstrable showing of: chronic and severe violence which negates safe parental communication; language barriers; institutionalization or other unavailability of a party; or where justice otherwise indicates.” The last bit of language does appear to allow for a party to include a reason not specifically listed, such as the party serving in the military or the fact that the child of the parties’ is close to being eighteen years of age.

If the Court decides to deny the Motion to Waive Attendance, it can permit a party to watch a five-hour DVD or online program. The cost to each party for the DVD option is also $80. The multimedia alternative is interactive and will provide the participant with a Certificate at the completion of the viewing. A party who is unable to attend in person a Parent Education Program can file a Motion to Permit Completion of Parent Education Program via DVD. As with the Motion to Waive Attendance, the party must include the reason(s) why they cannot attend and must make a demonstrable showing of such reason. The Order specifically lists the following reasons that can be included in the waiver, “significant health or financial issues, significant geographic and transportation issues, or other significant barriers to in person participation; or where justice otherwise indicates.”

The Order also provides some guidance as to what can and cannot be done procedurally with regard to the scheduling of certain court dates. An uncontested divorce hearing under Chapter 208, section 1A can be scheduled if both parties file separate affidavits that confirm that they have registered in a program and if both parties actually will have completed the program prior to the hearing date. The same holds true for a Pre-Trial Conference – the parenting course must be completed and certificates of completion provided at or before the Pre-Trial Conference. As before, the Court will not hold a Trial until the Court receives the Certificates of Attendance from each party. It appears that former practice by some judges – to permit parties to complete the course after a trial, but not issue judgments until the course is completed is not longer a possibility.

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Reforming (alimony) reform – A Chance to Reconsider Applying Effective Dates Retroactively in the event of Retirement and Cohabitation

May 10, 2016 by  
Filed under Recent Articles

by Matthew Solomon, Esq.

In 2011, the Massachusetts legislature passed the Alimony Reform Act (“ARA”). The ARA brought about a number of standards to the then existing alimony system in Massachusetts, which had been decided case-by-case by lower court judges. Because there was a lack of standards, the cases could not be relied upon by attorneys as precedent and divorcing couples often found the courts’ decisions to be inequitable or excessive.

Among other things, the legislature revised the ways which alimony can be terminated by inserting a durational limit formula and by including attaining full retirement age for social security, cohabitation for a period of three months. . The inclusion of retirement and cohabitation language in the ARA was extremely significant in that it provided clear standards that would be applied by courts to alimony obligations, and thus allowed divorcing couples a chance to come to terms short of litigation. The hope was that the ARA could help remedy some of the confusion and issues involved with these types of alimony orders.

The ARA, as with any law, is subject to the interpretation of the courts. In other words, the language of the ARA means very little until it is actually applied to a real case with real-life facts, and a court issues a ruling applying the new law based on the facts of the case.

In January 2015, the Supreme Judicial Court (SJC) issued three decisions that laid out a consistent interpretation of the ARA that surprised and confused lawyers, mediators, and even the authors of the ARA itself. In the three cases Doktor v Doktor, Chin v Merriot, Rodman v Rodman, the SJC stated unequivocally that the retirement provision of the ARA was only to be applied to cases where the judgment from the court occurred after the date that the ARA went into effect (March 12, 2012). It its ruling, the SJC relied heavily on the effective date sections of the ARA, which seem fairly clear about what cases are subject to the new act. About three months after the SJC decisions, the Appeals Court weighed in with its own opinion of the forward-looking nature of the ARA when it noted in a footnote in an unpublished opinion that the durational limits were the only exception to prospective application of the ARA (See, Cole v Cole, No. 14-P-466). See House Bill 3617 ARA, section 49 and 4(b), which provides that a pre-existing alimony order that exceeds the durational limits of Chapter 208, section 49 shall be deemed a material change of circumstance that warrants modification of the duration (not the amount) of a preexisting alimony judgment.

The overall reaction from the legal community to the three SJC rulings was generally one of disbelief and frustration. The feeling was it was patently imbalanced and inequitable that a person whose judgment of divorce was finalized one day before the passing of the ARA would not be eligible for the same alimony and modifications as a person whose divorce judgment was finalized one day later. There was also opposition to the SJC’s reading of the intent of the ARA. Several people noted that the SJC’s decisions contradicted the objective of the ARA and what the ARA was drafted to achieve. As a practical matter for attorneys, the three SJC rulings directly impacted the likelihood of success of pending alimony modification cases and the manner in which advice was given the clients with potential alimony modification suits. In fact, some attorneys have put alimony cases in limbo, waiting to see if there is any change in the law or even a ruling from a court that over-turns or modifies the SJC decisions.

Just recently there has been some significant movement with regard to challenging the SJC’s interpretation of the ARA. On February 19, 2016, House Bill No. 4034i* was filed to, in the words of Steve Hitner of the Alimony Task Reform, “fix the misinterpretation of the Alimony Reform Act of 2011 by the SJC.” (See massalimonyreform.org). The Bill is specifically designed to clarify the intention of the ARA with regard to retirement and cohabitation so that any case that brought on these issues will be modifiable regardless of the date of the divorce judgment. Stay tuned for more updates.

*As of the writing of this article Bill No. 4034 was amended by House Bill No. 4110, dated March 21, 2016. On April 19, 2016 the House ordered a third reading of the Bill. On May 10, 2016 the Bill was sent to be placed on the House Calendar.

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MOLST: Honoring Patient’s Life-Sustaining Treatment Preferences

February 22, 2016 by  
Filed under Recent Articles

by Matthew Solomon, Esq.

In 2012, Massachusetts introduced a new medical form called the Medical Order for Life Saving Treatment (MOLST) form. The driving force behind MOLST, and the broader National Physicians Order for Life Sustaining Treatment (POLST), came from a need for end-of-life planning based on conversations between patients, their loved ones, and medical providers.

The concept was to improve the quality of patient care and reduce medical errors by creating a system that identifies seriously ill patients’ wishes regarding medical treatment, and communicates and respects these wishes through portable medical orders. See National POLST website, http://www.polst.org

The MOLST form stays with the patient, so the form would be available at the location of the patient if he or she is picked up by emergency medical transportation or receive emergency care in his home or elsewhere, if the form is on his or her person.

In, Massachusetts, MOLST consists of a standardized process and form. The stated goals of the MA MOLST Program are to:

(1) Encourage discussions between clinicians and their patients nearing the end of life about treatment options and patients’ preferences for care; and

(2) Provide clinicians and their patients with a mechanism for translating patients’ preferences into portable signed medical orders (the MOLST form) which travel with the patient and can be honored across health care settings.

An important aspect of MOLST is that enables doctors, nurse practitioners and/or physician assistants to collaborate with the patient, the patient’s health care agent and (to the extent permitted by law), the patients’ guardian, to complete the MOLST form. The MOLST form, once completed and signed by the patient, is an actionable medical order.

The MOLST form consists of two pages, which are designed to be valid independently. Both pages require signatures from both the patient (or the patients’ Health Care Agent/Guardian/Parent or Guardian of a minor) and the Physician, Nurse Practitioner, or Physician Assistant for it be valid. Each page pertains to medical orders for specific medical treatments:

(1) Page 1 contains three treatment options:

(i) Cardiopulmonary Resuscitation: in the case of cardiac or pulmonary arrest (either “Do Not Resuscitate” or “Attempt Resuscitation”;

(ii) Ventilation: for a patient in respiratory distress (either “Do Not Intubate and Ventilate” or “Intubate and Ventilate” and either “Do Not Use Non-Invasive Ventilation (e.g. CPAP) or “Use Non-Invasive Ventilation (e.g. CPAP)), and

(iii) Transfer to Hospital: (either “Do Not Transfer to Hospital (unless needed for comfort) or “Transfer to Hospital”).

(2) Page 2 identifies five additional medically-indicated treatments that may be offered in a clinical setting and also documents whether the treatment has either been discussed or that the patient is undecided:

(i) Intubation and Ventilation: refers back to Page 1 and includes an option to choose short term;

(ii) Non-Invasive Ventilation: Includes the same options as for Intubation and Ventilation;

(iii) Dialysis: choices include “No Dialysis”, “Use dialysis”, and “Use dialysis, but short term only”;

(iv) Artificial Nutrition: Same options as for Dialysis; and

(v) Artificial Hydration: Same options as for Dialysis.

Page 2 is designed to assist further discussion between if and when new clinicians become involved in the patients’ care.

It should be noted the MOLST form is very different than a Health Care Proxy. The two most important distinctions between the two documents are that (1) the Health Care Proxy is a legal document while the MOLST form is a medical document, and (2) the Health Care Proxy becomes effective only if the person is declared to lack the capacity to make his/her own medical decision while the MOLST form goes into effect immediately upon signing. Thus, it is still recommended that people have both forms executed in order to hopefully cover every situation or setting.

Several important questions remain with regard to MOLST forms:

1. Will the form be honored in other states?
According to molst-ma.org, the MOLST form may or may not be honored in other states. Thus, there is no certainty that the form will be honored outside of Massachusetts, so it shouldn’t be solely relied on as a definitive and fool-proof medical order.

2. What happens if a person has a Comfort Care/Do Not Resuscitate Form (“CC/DNR”) as well as a MOLST form?
The Massachusetts CC/DNR form continues to be valid. The CC/DNR form can still be used to show that a valid DNR order exists, and should be honored by EMTs. MOLST forms can also be used in place of a CC/DNR form. If a patient has both forms, the most recent of the two orders should be honored.

3. Can a spouse or relative sign the MOLST form if the patient has lost capacity?
The only person that can sign the MOLST form for a patient who is over the age of 18 and has lost capacity is the patient’s designated health care agent.

4. Will EMTs or Emergency Room medical personnel really abide by them and let someone die?
That’s the big question that remains unanswered. EMTs do have the obligation to honor MOLST forms. The Massachusetts Department of Public Health’s Office of Emergency Medical Services (“OEMS”) has jurisdiction over emergency medical services and instructs that MOLST forms must be honored by EMS personnel. EMS personnel are told to call Medical Control (which acts as a link between EMS providers and physicians) if they are in the field and have a question about a MOLST form or the form’s instructions. EMS personnel are also instructed that a patient may, at any time, ask for treatment that has been previously refused on the MOLST form.

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Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014)

June 30, 2015 by  
Filed under Alimony, New Cases

This was a divorce after an eleven year marriage. Upon divorce, the probate judge ordered husband to pay monthly alimony that was approximately forty-one percent of the difference in incomes, which exceeded the thirty to thirty-five percent range set forth in the Alimony Reform Act. The Appeals Court stated that although such a deviation is “reasonable and lawful” under the Act, the probate court made no “finding as to the amount of alimony the wife needed in order to maintain the lifestyle she enjoyed during the marriage.” Thus, the probate court’s ruling on general support alimony was vacated.

Next, the Appeals Court reviewed the “self-modifying” portion of the alimony order. The Appeals Court detailed two major issues with this part of the order. First, the Appeals Court focused on the fact that the way the modification was ordered, the burden to show a change in circumstances was improperly shifted to the husband. The wife had no corresponding burden.  Second, the Appeals Court found the ‘self-modifying” order gave the Wife access to the Husband’s financial information but did not grant the same right to the Husband.  The husband would not be privy to information regarding the wife’s income and whether a material change had occurred in her needs.

 

 

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Are Self-Modifying Alimony Provisions Enforceable?

June 29, 2015 by  
Filed under Alimony, Divorce, Recent Articles

by Matthew Solomon, Esq.

A recent Massachusetts Appeals Court case, Hassey v Hassey, 85 Mass. App. Ct. 518 (2014) addressed whether a provision in an order providing for adjustments in alimony was effective. The Appeals Court found the one in the trial judge’s order in Hassey to be unenforceable.

Husband and wife were married for eleven years. Upon divorce, the probate judge ordered husband to pay monthly alimony and an “additional alimony equal to thirty percent of his gross income in excess of $250,000.00, from all sources…payable quarterly.” The husband was ordered to provide quarterly documentation of his income to the wife. Alimony was to continue until the first of four events: wife’s remarriage or cohabitation; wife’s death; husband’s death; or husband’s retirement as defined by the Alimony Reform Act.

The Appeals Court first looked at the amount of alimony ordered. (Note that this was not a consensual separation agreement entered into by the parties.)

In this case, the probate court failed to include in the findings of fact a consideration of the parties’ ability to maintain the marital lifestyle. This omission by the probate court gave the Appeals Court the opportunity to review the amount of the alimony award. The alimony order of the probate court was approximately forty-one percent of the difference in incomes, which exceeded the thirty to thirty-five percent range set forth in M.G.L. c. 208 §53(b). The Appeals Court stated that although such a deviation is “reasonable and lawful” under §53(b), the probate court made no “finding as to the amount of alimony the wife needed in order to maintain the lifestyle she enjoyed during the marriage.” Thus, the probate court’s ruling on general support alimony was vacated.

Next, the Appeals Court reviewed the “self-modifying” portion of the alimony order. The Appeals Court detailed two major issues with this part of the order. First, the “self-modifying” order was “not based on a judicial determination, supported by subsidiary findings of fact, of an increase in the wife’s need accompanied by the husband’s ability to provide for the same.” The Appeals Court focused on the fact that the way the modification was ordered, the burden to show a change in circumstances was improperly shifted to the husband. The wife had no “corresponding burden and will automatically realize the benefit of any increase to the husband’s income.” Second, the Appeals Court found the ‘self-modifying” order was “inequitable because it requires only the husband to disclose quarterly income to the wife, but imposes no reciprocal duty on the wife.” The husband would not be privy to information regarding the wife’s income and whether a material change had occurred in her needs.

A couple takeaways on this case: (1) drafting of “self-modifying” clauses should be done extremely carefully with as much explanatory language as possible; and (2) consider agreements to deviate from 53(b) alimony amounts. Another takeaway is that if a litigated case, careful reading of the findings of fact should be done to make sure that the lower court has addressed all the statutory factors in determining the initial alimony order.

©2015 Matthew Solomon.  All rights reserved.

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Mediator as Truthsayer

by Laurie Israel

Mediation is not one monolithic technique. Mediators and mediation theorists may categorize different types of mediation techniques into different theoretical boxes, such as “facilitative,” “evaluative” and “transformational.” But the categories all seem to bleed into each other.

At its core, mediation has as much variety as there are mediators, mediation clients and issues being mediated. Because of this variety and variability, mediation seems more like art than science, with unpredictable pathways through the process, and surprising results, if the mediator gives the clients space to evolve in their understanding of each other and the dispute.

There are various philosophies that swirl around mediation. One says that mediation is “client-directed.” Whatever the clients want, that’s what the mediator arranges in settling the clients’ agreement. The problem with client-directed mediation, is that the skills, background, and experience of the mediator are discounted and not taken advantage of by the clients.

This is true especially in an area such as divorce mediation or prenuptial agreement mediation, where the mediator (generally) has extensive knowledge of the operant law and the possibilities of resolution for each of the issues involved. There is no reason to expect a mediation client to be an expert in divorce law or the laws pertaining to prenuptial agreements. An understanding of these laws are important for the clients, and can enlighten and enrich the process of dealing with the practicalities inherent in ending a marriage or formulating a prenuptial agreement.

But what about that mediation rule that mediators are not supposed to give legal “advice” during the course of a mediation, but can provide legal “information.” What is the difference between legal “advice” and legal “information”? That’s a slippery slope that all mediators deal with on a daily basis.

A mediator cannot pretend that he or she knows nothing about divorce law or the law of prenuptial agreements. That would be absurd, because many of the issues that the clients are addressing are legal ones, and certainly, the clients are not supposed to be experts in the law. So, legal information must be rendered by the mediator, at least initially, subject to input by the clients’ reviewing attorneys (if they have any).

What about the “elephant in the room” that sometimes comes up in mediation? This is the little but very important fact that is unsaid, but lingers in the background, infusing the entire mediation with an element of untruthfulness. That elephant may need to be acknowledged and discussed openly in order to have all the relevant information accessible to make a well thought-out agreement by the clients.

How, when (and should) the mediator bring up the “elephant in the room”? Some of these elephants are quite large and important. Not saying something reminds me of the Hans Christian Andersen tale “The Emperor’s New Clothes.” We as mediators frequently face this issue. Should the mediator say something when he or she sees something, even if the clients have not brought it up, like the message in the subway, “If you see something, say something.” Or should the mediator remain silent until (and unless) the clients bring it up?

Clients engage us as mediators for many reasons. Sometimes they simply view mediation as a money-saving way to resolve their dispute. At times they choose us because they are afraid that engaging attorneys will make their disagreements more difficult to resolve and may be detrimental to their ongoing relationship. They generally, carefully choose their mediator based on the mediator’s experience and background, and also their sense of whether the mediator’s personality and approach will be compatible to theirs.

Mediation clients don’t choose a computer program or a machine. They choose a real person, with intellect, his or her own background and experience, and knowledge of the operant law in their dispute or issue. How silent should the mediator be in the process? When should the mediator follow and when should the mediator lead? Should the mediator say the “truth” as he or she sees it when an issue comes up that the parties may not understand clearly? Or should the mediator remain silent?

The danger being a “truthsayer” when you’re a mediator, is that your “truth” (sometimes unbeknownst by you) may support or give the appearance of supporting the position or view of one or another of the clients. This can happen even if the connection between the “truth” said and a party’s position is quite attenuated, because mediation clients can sometimes be very fragile. As a result, the mediator becomes tainted with perception of bias or lack of neutrality. Usually, this immediately ends the success of the mediation. So being a mediator “truthsayer” can pose great risks to the process.

However, there are also strong benefits for saying the “truth” as you see it, at least sometimes. Mediators often try to appease both sides of the mediation. In doing so, the mediator can be perceived as untruthful, and both sides can lose respect for the mediator and the mediation process weakens. For this reason, a word of “truthfulness” by the mediator can have a powerful effect in mediation — perhaps leading to a resolution, even if it temporarily seems to support the position of one side rather than the other. Both sides can feel like there is a person in the room that can provide feedback that can help them resolve their dispute.

The mediator’s truthfulness should always be balanced with a demonstration of support and respect for other mediation client and should include an explanation of why the mediator sees the issue that way. It’s dangerous, but can move things strongly forward.

If it’s done in a non-threatening way, the other party will also have a chance to express and clarify his or her view. As a result, greater mutual understanding on the issue by the clients can occur. Even small changes in view might lead to resolution on the issue and could have a ripple effect to lead to other agreements in the mediation. Bringing the parties to agreement may be better served by an active mediator, even though much of the activity might be subtle.

The most important factor in mediation success and not allowing the mediator’s “truth” derail the process is that the mediator has respect for both clients. This respect should be evident and actual — demonstrated by words, listening, comments, and structure — or else the moment of “truth” might be too dangerous.

In this safe setting of respect, when the mediator offers his or her “truth” in the right way at strategic times in the mediation, the small changes and cumulative understandings that can make the mediation successful can be greatly facilitated.

© Laurie Israel 2013

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Where Does Marital Mediation Fit In?

by Laurie Israel

During the past quarter century, academics and others writing about mediation have characterized styles of mediation as belonging to one of three categories: “facilitative”, “evaluative” and “transformative”.   The categories are quite clearly defined.

Facilitative Mediation

“Facilitative” mediation (the original type which started to be broadly practiced in the 1960s and 1970s) involved a process designed to help clients come to agreements.  Often this was practiced in volunteer mediation organizations dealing with small business or “neighbor” disputes.  The mediators tended to be trained in mediation, but not generally trained in substantive knowledge of the area they were mediating.

Facilitative mediation has matured so that mediators are now not only trained in mediation, but often are familiar with the substantive law pertaining to the dispute that is the subject of the mediation.  Facilitative mediators range in their views as to how important the substantive “law” is to mediating a dispute.

Facilitative mediators use standard mediation practices such as finding the interests behind the parties’ positions, reframing, active listening, validating points of view, defusing “hot” speech and helping clarify communication misunderstandings.

Facilitative mediation is goal oriented, the primary goal being for the parties to come to agreement. Traditionally, attorneys are not present during the mediation sessions.  Sometimes there are “caucuses” in which the mediator might meet separately with one or the other party.

The clients make their own decisions, with the mediator “facilitating”.  The mediator structures the process, and leads (sometimes very subtly) the parties towards resolving their disputes. The facilitative mediator does not give advice, nor does he or she intersperse the mediator’s own views into the mediation.

Evaluative Mediation

The second type of mediation is called “Evaluative” mediation because the mediator’s role is to evaluate the dispute presented to him/her through the lens of existing law.  This mediator sifts through the “facts” of the dispute and seeks to predict how the dispute would be decided by a judge or jury if brought to court.

Often evaluative mediation is entered into after a court case is in progress. Attorneys are usually present. Caucuses in which the mediator might meet separately with one or the other party are frequent.  In fact, at times the parties never meet face to face, and the mediator goes from room to room, practicing what is called “shuttle diplomacy”.  The goal is to get the litigating parties to come to agreements using the mediator’s evaluation of the relative strengths or weaknesses of party’s lawsuit to encourage parties to come to settlement.

Transformative Mediation

The final theoretical type of mediation is “Transformative” mediation.  The definition of this type of mediation was formulated by Joseph Folger and Robert Bush in the early 1990s.  Both Folger and Bush are academics, Folger now at Temple University; Bush at Hofstra University School of Law.

Folger and Bush theorize that mediation has the potential to effect deeper changes in people than just resolution of specific disputes.  It has the capability to transform, not only the relationship between the parties, but even the character of the individuals involved.

According to Folger and Bush’s construct, the key to this transformative change in mediation is “empowerment” and “recognition”.  Empowerment here is used in the sense of a person’s power to make his or her own decisions.  A person is empowered through gaining clarity about goals, resources, options, and preferences.  The person uses this information to make his/her own clear and deliberative decisions during the mediation process.  “Recognition” is considering, acknowledging, and having empathy for the other person in the mediation.

The mediator’s focus is to look at the parties’ interactions, and identify opportunities to assist the parties in gaining “empowerment” and promoting “recognition”.  The process is open-ended, unlike facilitative and evaluative mediation.  The goal is not necessarily towards “settlement” – settlement is presented as one possible outcome.

Where does Marital Mediation fit in?

Is marital mediation (mediating disputes between married couples) facilitative, evaluative, or transformative?

First of all, like all mediation, marital mediation styles will depend on the personality, skills, preferences, and background of the mediator.  Mediators come from all walks of life, and with varying experiences and trainings. Mediators are not generally locked into one of the three categories. Every mediator will do his/her job differently and most combine mediation strategies to seek to make the mediation effective. Mediation, in that sense, is more like an art than a science.

Most of what marital mediators do falls under the category of “facilitative” mediation.  However, in marital mediation often the mediator is not as concerned with helping parties get to an agreement, as with promoting understanding.  In contrast, in divorce mediation, the goal is to come to the many specific agreements needed to complete a comprehensive divorce settlement agreement.  As a result, divorce mediation has a specific goal and may be faster-paced.

In a marital mediation, the parties are not getting along in certain aspects of their relationship.  Often this discomfort and anger has spread over to their entire relationship making their interactions quite corrosive.   Getting them to have one agreement on a troublesome issue may be helpful, but facilitating mutual understanding is generally more important.  That is why in marital mediations, a written agreement often does not result from the process.

In a marital mediation, a couple need not solve all of their problems.  There might be only one issue worked on, and when there is resolution of that issue, the parties are able to solve other issues by themselves, and the ongoing relationship improves.  So in a sense, the process is “transformative” because the mediation has transformed the marriage.

Sometimes there might be elements of “evaluative” mediation in marital mediation sessions – particularly if the mediation clients are close to divorce and want to know what the terms of a divorce might be in their factual situation.  In these types of marital mediations, the clients may wish to enter into a postnuptial agreement to clarify their positions and relieve the stress of uncertainty in connection with financial issues that are troubling them.

Unlike in “facilitative” mediation and “evaluative” mediation, caucuses in marital mediations are discouraged.  Caucuses involve “secret” messages to the mediator that can become very awkward and destructive to the marital mediation process.  In marital mediation the point is to make all lines of communication clear.

The Folger and Bush ownership of, and construct around the term “transformative” in “transformative mediation” is problematic.  They have essentially co-opted the general term “transformative” to mean a mediation based on “empowerment” and “recognition”.  This puts a conceptual straightjacket on other forms and blends of mediation that both clients and mediators feel are “transformative”, within the generally accepted meaning of that word.

Many marital mediators who primarily use “facilitative” mediation, find that helping married couples solve disputes through standard mediation techniques and clarifying  longstanding misunderstandings is “transformative” for the clients. A couple that stops arguing about something (with the help of a mediator) has learned something important about their interactions – and perhaps themselves — that they can apply to other situations.  This can be transformative to them.

And one could say all effective marital mediation is transformative, whatever method of mediation is used.  Forcing  “transformative” mediation to be based on Folger and Bush’s construct of “empowerment” and “recognition” is too limiting.

John Fiske, a Massachusetts mediator, talks about the essence of spousal conflict being caused by issues relating to “control” and “acknowledgment”. Although these terms seem similar to Folger and Bush’s “empowerment” and “recognition”, the first prong of Fiske’s construct is quite different.

Fiske, like Sharon Strand Ellison in Taking the War out of our Words: The Art of Powerful Non-Defensive Communication (1998, 2007), http://www.pndc.com/ believes that power struggles between spouses is the central theme of most marital conflicts. Fiske encourages couples in marital mediation to look at their behavior in terms of power and control, because when you scratch the surface, that is what they are generally arguing about. Fiske also posits that lack of respect or acknowledgement of the other spouse’s actions and views, aside from being usually not fact-based, is a destructive element in a marriage.  Acknowledgement encompasses being heard, understood, and respected. A mediator working with the issues of “control” and “acknowledgement” in a marriage can help a couple greatly.

I find Fiske’s construct of “control” and “acknowledgement” more useful in my marital mediations than the Folger/Bush construct.  To see how Fiske’s construct plays out in the context of typical spousal disputes relating to driving automobiles, see my PowerPoint entitled “Driving your Spouse Crazy — Literally”. http://www.maritalmediation.com/2013/11/driving-spouse-crazy-literally/

Unlike facilitative (and evaluative) mediation, the Folger/Bush model of transformative mediation allows and even encourages the parties to express emotions and bring up discussions of past events.  Marital mediation is more like “facilitative” mediation in that respect, in that emotions and past events are generally  (and intentionally) excluded from the mediation.  This is also one of the differences between marital mediation and marital therapy or marital counseling.  In the latter, emotions and past events are often explored and used to help a couple improve their relationship.

Marital mediation is fact-based, communication based, and focused on the present and future.  But even though the mediation does not focus on past events, and personal and family histories, in a successful marital mediation, the result can be seen as “therapeutic” in the sense that if a marital conflict is lessened, the parties feel better about each other and their marriage.

Marital mediation is similar to “transformative” mediation in that it is open-ended.  Parties may come to the mediator with a specific dispute, but more often they come with many disputes. Taking time to solve one of them, and not forcing a solution or agreement to a particular problem in one session is extremely helpful to marital mediation clients.  Since coming to “an agreement” is not primary (but coming to understanding is), marital mediation is slower-paced than facilitative mediation, but in general, clients will use a similar number of mediation sessions in all.

Where does marital mediation fit into the construct of “facilitative”, “evaluative” and “transformative”?  It has characteristics of all of these, as well as John Fiske’s construct of “control” and “acknowledgement”, depending on the situation, the mediator’s preference, experience and style, and the clients’ needs and visions for what the marital mediation should accomplish.

© 2015 Laurie Israel.  All Rights Reserved.

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