The flowchart below gives an overview of different processes for completing a divorce in Massachusetts. In 95% of divorce cases in Massachusetts, the final terms of the divorce are agreed upon in a separation agreement that is written up outside of court and presented to a judge who approves it in a 20-minute hearing. There are very different routes, however, for reaching this separation agreement and brief hearing. In many cases, there are court actions–litigation or “contested divorce” processes–before a couple agree on the terms of the divorce in a separation agreement.
Still want to try mediation? Check out the primer on mediated divorces, and talk to an attorney. And keep an open mind about the process, even if feelings are running high right now. Green says she had a client who would say she tried to say to herself, “‘how will I feel about this in five days, how will I feel about this in five months, how will I feel about this in five years?’, and I thought that was a very useful question for a person to ask themselves when they’re beginning this process.”
Probably the most common misconception that I hear from people about divorce mediation it that they believe it is only suitable for couples that are very amicable. Their perception is that since they are not getting along very well with their spouse, they can’t sit down together and discuss anything let alone issues regarding their money and children. In fact, mediation is very well suited to helping parties who are high conflict to work through their differences and come to a reasonable solution.
Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effective as possible. The issues covered include but at not limited to the following:
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Another common complaint is that the system is too soft on child support obligors. Truth be told, there are some self-employed parents that are doing well financially, but whose "inaccurate" tax returns show little income after they’ve written off business expenses (e.g., cars, travel and entertainment). Sometimes, these parents are able to fool the system and pay a lower amount of support.
The big warning I have is this: years ago, when the program started, the idea was that the evaluators would give their opinion of how they would likely decide the case in a full-blown custody evaluation, based on the facts learned in the SENE. This honest appraisal of how a months-long custody evaluation would likely turn out is what helped parties to settle their cases.
The guidelines use each parent's monthly gross income and consider basic, medical and child care support. A parent's monthly gross income is reduced by the amount of spousal maintenance or child support that the parent is ordered to pay from other support orders. Minnesota law allows a deduction from a parent's monthly gross income for a maximum of two non-joint children in their home.
The court decides both legal and physical custody. Legal custody is the right to make the major decisions about the children. These include the children's religious upbringing, schooling, and medical care. Physical custody means where the children live and which parent makes the routine daily decisions. Physical custody is what most people think of when speaking about custody.
You may be surprised to know that most MN divorce cases (over 90%) are settled before they ever reach a court room. Mediation is so effective that the State of Minnesota requires you make a good faith effort to settle your divorce through Alternative Dispute Resolution (ADR) before appearing in Court – so why not start with a process which is proven to work as well, if not better, than litigation?
When it comes to divorce in Minnesota, it’s important to know that the state favors “equitable distribution.” This simply means that all assets are divided equally among both parties regardless of either party’s wishes. Sometimes, though, this doesn’t necessarily mean that “equitable” will be equal. Rather, the word fair is more the proper term to be used when dealing with property distribution.
Mediationis one ADR method. In mediation, the parties try to work out an agreement between themselves with the help of a neutral third person called a mediator. The mediator helps the parties discuss their disagreements, make compromises and reach their own agreement. Mediation can be helpful because both of you have agreed to the outcome rather than having a big fight and the judge makes decisions for you. Mediation about custody or parenting time can be helpful because you both will continue to be parents to your children and together you can continue to work out parenting issues. In mediation both of you should be able to say what you want and cooperatively work out compromises. If you don't understand things or don't feel you have equal power with your spouse, the mediation is not fair. You can stop the process at any time without reaching an agreement. You only have to try to settle. You can't be forced to agree to something.
Like all states, Minnesota requires both parents to support their children, even after a divorce. The amount of child support depends primarily on each parent's income and other resources, and how much time each parent spends with the children. In addition, sometimes the courts will "impute" income to a parent who has the capacity to earn more than he or she actually is earning. To learn more about child support, see Nolo's Child Support area.
That said, although the legal impact of the physical custody label is debatable, if you are the primary parent, it is still preferable to have sole physical custody than joint physical custody. Conversely, if you are not the primary parent, it is still preferable to have the joint physical custody label than not to have it. This is because of the uncertainty over how a future court, evaluator, parenting consultant, guardian ad litem or others might interpret that label.
Fees may be charged on an hourly basis, or by the day or half-day. In general, mediators help the parties meet, explore options, and negotiate a mutual settlement to resolve their dispute. Mediators do not determine who is right or wrong. Instead, they help the parties reach a solution on their own that works for them. Parties should seek mediators with mediation training, experience, and specific knowledge of family law. It's also important to consider the mediator's style and mediation philosophy.
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For example, if there are two automobiles, each spouse is usually given one of them. This is especially true if the cars are nearly equal in value. If there is only one automobile, the court often awards it to the spouse who has the greater need for transportation. Extra items of personal property may be awarded to the other spouse so that the overall value of each share remains the same. Retirement accounts and whole life insurance policies are property too.
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If alternative dispute resolution is not able or available to resolve temporary issues, many counties will allow formal hearings to decide temporary issues, including who will have temporary possession of the homestead during the proceeding, who will pay the mortgage, taxes, insurance and utilities on the homestead, what type of temporary custody/parenting arrangement is in the children's best interest, what amount of temporary “child support” is appropriate, what amount of temporary “spousal maintenance”, if any, is appropriate, who should pay other debt on a temporary basis, and whether there should be an award of temporary attorney fees. These requests are traditionally based upon written “motions” which is a written request for relief, with the “testimony” reflecting your position being summarized in a sworn, written affidavit. Sometimes you will also submit affidavits from other people in support of your position. The attorneys will then argue your position before a judge, who thereafter will issue a written order deciding the temporary issues.
Once a decision to start a divorce action is made, one party will serve two documents, one titled "summons" the other titled "petition". The person starting the action is referred to as the petitioner; the other party will thereafter be referred to as the respondent. Occasionally, however, in very amicable divorces the parties may agree to act as "co-petitioners." A petition most typically is served by having a person other than the petitioner hand a copy of the petition to the respondent. It occasionally can also be served by mail subject to certain requirements. Many times, arrangements can be made ahead of time so that your spouse is aware of the time and location he or she will be served with a summons and petition, although unfortunately sometimes service comes as a complete surprise.
For most consumer legal issues, the size of the practice is much less important than the experience, competence, and reputation of the attorney(s) handling your case. Among the most important factors when choosing an attorney are your comfort level with the attorney or practice and the attorney's track record in bringing about quick, successful resolutions to cases similar to yours.
Most courts give parents the opportunity to work with independent evaluators soon after the case is filed to see if they can reach an agreement about custody, parenting time, money and property. The two types of ENE are: Financial ENE (FENE) to settle financial disputes and Social ENE (SENE) to settle custody and parenting time issues involving their children.