Dear Reader: Your trip to a Massachusetts divorce court assaults your senses- -peeling paint, broken chairs, and years of accumulated dust surround the minions awaiting a handful of overworked judges. Physical plants were retrofitted from gas lighting to electric lighting in the latest modernization program. Don't expect to find many computers . Our legislature denies adequate funding to courts dealing with death, divorce, and disability; the dead don't vote. If courts sold liquor, the legislature would consider them a special interest group worthy of subsidies such as price supports. Obviously, industry takes precedence over children and families. Sharyn T. Sooho Steven L. Fuchs Law Offices of Sharyn T. Sooho Two Newton Place, Suite 200 Newton, MA 02458-1634 voice: (617) 969-1400 fax: (617) 964-1694
If you plan to remarry, insist on a prenuptial agreement. Courts will enforce these agreements if: * You provide full and accurate financial disclosure. * The agreement is fair and reasonable when signed. * The agreement is fair and reasonable at time of death or divorce. What is "fair and reasonable?" Judges may interpret this standard differently, but any radical departure from commonly accepted notions of fairness are met with resistance. For example, don't expect to keep everything if your spouse is on welfare. Agreements are more easily enforced if you: * Never use the same attorney. * Allow your fiancée enough time to review your financial statements with a lawyer and financial advisor. * Give your fiancée ample information on hard-to-value assets like a family business or trust fund. * Do not address custody and child support. * Provide life insurance for your spouse.
Divorce judges bemoan the dramatic increase in people
representing themselves--sapping judicial resources because
pro se litigants are unfamiliar with proper courtroom procedure.
Our system allows anyone to act as her own lawyer. With
stratospheric legal fees, should you to be your own lawyer?
Even simple matters like scheduling court appearances can end in
procedural quagmires. For instance, your spouse doesn't show up
because you sent notice via FedEx instead of using a sheriff or
the US Postal Service. Courts trust the US Post Office, but not
private carriers. How are you supposed to know what is
intuitively nonsensical?
Try these strategies for obtaining legal services:
* Call a local legal aid office if your income is low.
* Speak to the volunteer lawyer at your county divorce court.
* Call the state and local bar associations for the names of
lawyers who take reduced fees.
* Read "how-to" books with forms and instructions. Divorce,
like politics, is local, so use Massachusetts divorce
resources.
If your case involves children and complicated financial
matters, get a lawyer.
Fairness means equal in our culture. Children are taught to divide equally while adults expect to inherit equal shares. But Massachusetts divorce courts create "equitable," not necessarily "equal" divisions of assets. Massachusetts like most states requires "equitable distribution" while several "community property" states, including California, divide property equally. Courts weigh evidence on the length of marriage, age, health, conduct, education, and work experience of the parties, needs of children, homemaker contributions, the parties' income and expenses, and the future economic prospects of each party. If you were married 20 years with no job history, you are a candidate for a larger share of the assets. But do not expect a substantial deviation from the traditional 50-50 split. Alimony follows a different set of rules. Recipients receive as much as one-third of the payor's gross income, but rarely more.
(Interview with Janet Weinberger)
Which couples are likely candidates for mediation?
Since mediation is strictly voluntary, both members of a couple
must want to reach a fair settlement in a non-adversarial way.
The couple must have the ability to sit in the same room and
listen to each other, often with the mediator's help. Each
needs the capacity to agree and disagree with the other.
Can mediation work when one party is much less sophisticated
financially?
This is referred to as a "balance of power" issue since knowledge
and power are closely related. Power between the parties doesn't
have to be equal at the beginning of mediation, but any imbalance
must be manageable. The weaker party must have the willingness
and ability to learn about finances. Then, with information
provided by the mediator and sometimes by outside professionals,
the less knowledgeable party can be brought "up to speed," and
power can be equalized.
What if one side is suspicious that the other side is hiding or
misrepresenting income or assets?
Both parties must trust that full financial disclosure will be
made. If suspicions run deep, mediation is generally
inappropriate.
Janet Weinberger is an attorney who practices divorce mediation
in Newton. A former president of the Massachusetts Council on
Family Mediation, she has graduate degrees in both law and social
work.
You've settled your case. Now the court will schedule a hearing within a few weeks. You appear before the court, and after a 90 day wait, your divorce is final. Here's the strange twist. If your divorce is granted as "no-fault," you wait 120 days for a final divorce. If you filed a no-fault divorce and cannot settle your case, you must wait six months from the filing date before requesting a trial. Fault divorces can be scheduled for trial without any waiting period. In either case, expect to wait three to nine months for a trial date. After trial, fault and no-fault divorces are final on the 90th day. Bottom line: contested no-fault divorces are the slowest; uncontested fault divorces, the swiftest. Prediction: the waiting periods before and after the hearing will be eliminated when lawmakers realize that people don't reconcile even when forced to wait.
Dress for success in Court: * Do not wear sneakers. * Do not wear shorts. * Do not wear jeans or tee shirts. * Do choose an outfit suitable for a business environment. * Women, keep your make-up to a minimum. * Men, ties and jackets, please.
For an overview of children of divorce, read Judith Wallerstein's books. The latest, "Second Chances," reports on children whose parents were divorced 15 years. You find a recurrent theme: children do best when both parents are involved with them after divorce. "The possibility of divorce renders both marriage partners stricter in their observance of the duties they owe to each other." --Denis Diderot (French Philosopher) "I don't believe man is woman's natural enemy. Perhaps his lawyer is." --Shana Alexander
If your agreement calls for a cost of living adjustment ("COLA"),
the CPI for all urban consumers increased 2.8% for the twelve
months ending January 31, 1995.
(source: Bureau of Labor Statistics)
* Coin Toss Property Division
* Courtroom Etiquette
* Tips on Dealing with Opposing Counsel