One of the first things I explain to clients in our free one hour initial divorce consultation is that there are three types of professionals in Massachusetts who can help clients resolve their divorce case: Mediators, Lawyers trained in Collaborative Law, and traditional Litigators. Each of these methods has strengths and weaknesses, and they can be demonstrated by showing you how some well known couples might have experienced these various options:

Couple #1 - The Cleavers. Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).

Couple #2 - The Huxtables. Cliff is a doctor and Claire is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home.

Couple #3 - The Honeymooners/The Kramdens. Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."

Please Vote for whether each couple should use mediation, collaborative law or litigation, by leaving your Comments below.

P.S. Thanks to DGVElaw for giving us the idea for this post with her estate planning couple.

This question was recently discussed on a LinkedIn discussion board that I follow, and the consensus was clearly that friendly divorce IS possible. This is also the message of a recent Wall Street Journal article: The Divorce Generation.

That doesn't mean that a friendly divorce is easy or even possible in every case. But more and more people who have reached the unfortunate conclusion that their marriage is over, do not want to have the drawn out and angry divorce that their parents had. To respond to this desire to find a better way, more and more attorneys are offering alternative dispute resolution services, to end your marriage in a better, more civilized way.

Both mediation and collaborative divorce offer ways to accomplish the "friendly divorce." To learn more about these options click the links below:

Mediated Divorce
Mediation Pros and Cons

Collaborative Divorce
Collaborative Pros and Cons

Once an agreement is reached, a mediator who is also an attorney can help the individuals prepare court documents, such as the Separation Agreement. If you need assistance preparing your Financial Statement, or you need advice as to whether an Agreement is in your best interest then you should consult with an individual attorney. Although, a Mediator can help you prepare an Agreement, they cannot provide you with individual legal advice.

Some attorneys do not believe it is appropriate, or "kosher", for attorney/mediators to prepare any court documents because it is too close to the services performed by individual legal counsel. At Kelsey & Trask, P.C. we assist our mediation clients in completing the necessary court forms to ensure that they have been adequately informed about how to successfully present a Joint Petition for Divorce. We believe the goal of a divorce mediation is to reach this successful conclusion and part of that is correctly filling out a Joint Petition for Divorce and the appropriate and required pleadings.

For other opinions on this issue check out the Email Exchange entitled Is it Kosher for an Attorney/Mediator to Draft Court Paperwork for Clients? located on page 22 of the Spring 2010 issue of the Family Mediation Quarterly.

In Massachusetts, there is no certification for Mediators. However, there are requirements if you want your Mediation to be kept confidential. Massachusetts General Laws Chapter 233 Section 23C requires three elements for a Mediation to be confidential and privileged from discovery in a court proceeding.

First, you must enter into a written agreement with the Mediator. Second, the Mediator must have completed at least thirty (30) hours of training in mediation. Finally, the mediator must have at least four years of experience or be a member of a dispute resolution organization that has been in existence for at least three years, such as the Massachusetts Council on Family Mediation, Inc.

Attorney Justin Kelsey meets these standards and if you sign a written agreement to hire Attorney Kelsey as your mediator then all communications and work product of your mediation will be confidential pursuant to MGL ch. 233 §27C.

Although sometimes necessary, appearing in Court is often a lengthy, expensive, and disappointing trial (pun intended). Any combination of failed preparation, miscommunication between client and attorney, or incomplete discovery can cause the process to result in imperfect and incomplete Orders. Sometimes just the limitations of the court process (such as the limited time of the Judge to hear each case) can result in frustrating court appearances.

In order to avoid unnecessary costs, you may want to consider alternatives to litigation such as Mediation or Collaborative Law. For more information about those processes read our past posts:

What are the Advantages & Disadvantages of Mediation

Dramatic Impact of Mediation on Children of Divorce

Mediation, Collaborative Law or Litigation: What's your Vote? - A 3 Part Post:

The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I

The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III

Even if mediation or collaborative law is not available in your case (these processes both require joint and volunteer participation), it is still possible to reach agreements with the proper preparation and forethought. Make sure that you provide your attorney with all of the information necessary for them to properly and timely prepare your case, and they should be able to make appropriate and timely proposals for settlement that could help you avoid costly and disappointing court appearances.

Over the NFL's objection Federal Judge Susan Nelson has sent the NFL and the players to mediation in front of a federal magistrate. The NFL urged mediation is inappropriate until the NLRB rules on the legality of the decertification of the union. I cannot believe the current NLRB will restrict the right of players to decertify their union. Nor can I believe the court will refuse to address the players anti-trust claims. The judge also issued a strong warning to both parties that litigating rather than mediating was very risky.

The one question that everyone asks at the end of their initial divorce consultation is "how much is this going to cost?" And with good reason, because cost is a valid concern, especially for many of our clients who have lower or middle class incomes and lifestyles. Unfortunately, the answer is vague and unsatisfying because it depends on so many factors. I try to provide clients at the initial consult with some idea of what I expect the range to be for their case based on what I've learned during that brief time. But some of the factors are truly unpredictable, most significantly how much the other side wants to fight.

There are many ways to reduce the cost of a divorce. In some cases, where both parties are well-informed and willing to cooperate, mediation can be a cheaper option then hiring two lawyers for the whole process. Even if you both have attorneys, following the court Rules and providing documents and other information in a timely fashion can help reduce the costs. For example, just spending the time to draft a complete Financial Statement saves your attorney time having to walk you through each individual question.

Unfortunately, if your spouse does not cooperate with the court Rules and Orders by trying to hide assets, or delaying the disclosure of documents, the costs increase because your attorney has to do more work to chase down the information necessary to advise you. This can be frustrating for clients because it means they do not have control over some of the reasons that attorney's time (and therefore fees) can increase significantly. Because family court is a court of equity it is possible to request that the opposing party pay for fees that are due to their delay or wrongdoing, but often these requests are denied or ordered only partially.

So what do you do if you don't have the funds to pay for divorce counsel, or don't have access to the funds because your spouse controls the finances?

For those with significant marital estates, a recent New York Times article has highlighted the latest in divorce funding options: companies that invest in your divorce. Of course, these companies request a contingency fee in exchange for funding your legal fees (something which attorneys are not allowed to do in divorce cases pursuant to the ethics rules). Because they expect a contingency, these companies only invest in high asset cases, one of the owners describing their ideal case as one with two to five million dollars in marital assets.

For many of our clients and probably many of our readers, these figures are not realistic. However, if you cannot pay for a lawyer there are a number of options for you to still obtain legal advice. There are numerous legal aid services that you may qualify for, and there is a webpage that contains a directory of these services available in Massachusetts.

In addition, it is possible that the Judge will order your spouse to pay your legal fees if he or she has control over assets that would help you pay for counsel. This request will depend on the specific facts of your case and the availability of funds. You may be able to find an attorney who will take your case and file such a Motion based on a small retainer and the likelihood of receiving further funds.

Also, many attorneys offer a free initial consultation. Even if you are unable to eventually hire that attorney, the initial consultation could still provide you with invaluable information regarding your rights and obligations in a divorce case.

Finally, there is also a Lawyer-of-the-Day program in many courts in Massachusetts. As part of that program an attorney volunteers their time for the day to answer legal questions and help potential litigants fill out forms in the courthouse. If you plan to meet with the Lawyer of the Day try to get to the Courthouse early (it opens at 8:30 A.M.) because the line can fill up quickly on a busy day and sometimes they only stay until 3:00 P.M.

Mediation has many advantages over litigation. It is usually less expensive than negotiating your agreement through two attorneys and it is far less expensive than going to trial. Mediation can also help you avoid the backlog in the courts, allowing for a more expedient resolution.

In addition to these practical concerns, though, Mediation offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Mediation is your opportunity to make these decisions together. After all, who knows what is better for you than you do.

On a related not, Mediation is also an excellent forum for solving issues unique to divorce that our legal system cannot adequately address. As an example, many couples will litigate who will get custody of the family pets. While most judges are not interested in talking about this, a good mediator will be able to give an appropriate amount of attention to an issue that the parties may feel is important.

Finally, privacy is an important concern for many of our clients. Court is a public forum. Understandably, many people feel uncomfortable talking about the breakdown of their marriage to a judge in a courtroom full of strangers. Mediation takes place in a more private and comforting environment, where the parties can set their own pace to better accommodate their own emotional and practical needs.

There are also disadvantages to mediation, though. For example, when there is a history of abuse between the parties, mediation often fails because the parties cannot reach the necessary level of trust to mediate their dispute amicably. Furthermore, there are no guarantees that mediation will result in an agreement, which could end up costing you more in the long run. You should honestly evaluate whether you and your spouse are willing to participate in an open process before entering into mediation

To learn more visit our website or call us to schedule a free 1-hour consultation.

The Kramden's and Litigation:

Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."

Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and pulls back his arm making a fist. Rather than wait to see if Ralph would actually hit her, Alice immediately backs away. Ralph does not follow her, but Alice is afraid and leaves the apartment.

She goes into a friend's apartment down the hall and calls the police. The police arrive and after interviewing both parties they indicated that they are not going to arrest Ralph. They ask Alice if she wants to request a 209A restraining order against Ralph and she states that she does. The police call the emergency Judge who approves an emergency restraining order. The police escort Ralph out of the apartment who has calmed down and accepts the police's request without any fight or argument.

Ralph, escorted by the police, collects some of his clothes and moves in with his friend, Ed Norton.

The following morning, Ralph and Alice both show up without lawyers at a hearing in the Suffolk District Court. Alice indicates during the hearing that she was afraid that Ralph was going to hit her during their argument, even though he has never carried out his threats in the past. Alice also states that she is not afraid of him right now and that she feels safe so long as he does not move back in. Alice also indicates that she intends to file for Divorce and that she doesn't want Ralph to move back in. Ralph agrees that he won't move back in and that he will continue to live with Ed. The Judge indicates to Alice that he can only extend the Restraining Order if she has a "reasonable fear of imminent serious physical harm," and given her testimony he cannot extend the restraining order.

Both Ralph and Alice consult with attorneys. Alice does not consult with a free Legal Aid service because she is back to working as a part-time secretary and she believes that she does not qualify for their services.

Alice borrows money from a friend to hire the attorney she consulted with because she doesn't feel safe negotiating directly with Ralph. Alice's attorney files a Complaint for Divorce.

Eventually right before the Pre-Trial, Ralph hires an attorney as well and the Divorce case is settled via Separation Agreement at the Pre-Trial. Both parties end up with some debt because of the cost of their legal fees.

COULD THIS HAVE GONE BETTER: Unfortunately, when domestic violence is an issue in a case, it is practically impossible to make use of mediation or collaborative law. Although mediation or collaborative law could have been cheaper, both options depend on a certain amount of trust between the parties and it is necessary for there not to be any threat of coercion.

Even in an instance where no physical violence has occurred, the threat of violence can be just as damaging and puts the victim at a disadvantage in any negotiation (notwithstanding the ongoing safety concerns).

As was suggested by one of our voters, DGVE law, Alice, might have been better served by having a trained domestic violence advocate work with her. Resources for domestic violence victims in Massachusetts are available here. Alice should have also discussed her case with potential legal aid services before assuming she didn't qualify. Resources related to finding legal counsel and/or legal services are available here.

According to a 12 year study by Dr. Robert E. Emery, Ph.D., a Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia, Mediation can have a dramatic impact on children of divorce and their relationship with a non-residential parent. Dr. Emery summarizes his findings in the recent issue of the Family Mediation Quarterly.

The study used a coin-flip to decide whether high-conflict custody cases would try a short-term (five hour average) mediation. The results of only five hours of mediation were amazing, especially with relation to the children.

Twelve years after the average divorce in America, nonresident parents saw their children weekly in only 11% of cases. In the cases where the parties tried mediation based solely on a coin-flip 28% of nonresident parents saw their children weekly after 12 years. This is a significant difference and the difference is even more significant with reference to telephone contact (weekly telephone contact: national average 18% & mediation average 52%).

To see how these effects extended to other parental involvmenet as well (school, discipline, religous upbringing, etc.) check out the article on the MCFM's website here.

Even in high conflict cases these results suggest that just giving mediation a try can be beneficial to your child's relationship with their parents and therefore beneficial to your child's health. Tough statistics to ignore if you care about your children.

To schedule a 1-Hour Free Mediation Consultation with Kelsey & Trask, P.C. call 508.655.5980 or e-mail us.

A recent article published in Massachusetts Lawyers Weekly discussed a case in Middlesex Probate & Family Court where an attorney in a divorce case asked the judge to order one spouse to pay "pet support" to the other spouse to care for the couples' two dogs. The judge immediately refused the request. The article noted that the judge had just heard a series of cases that involved foreclosed houses and parents losing their jobs.

This illustrates an issue that many divorcing couples face when going through the court process. Courts usually only have the time and resources to deal with the "big" issues -- alimony, child custody and support, and property division. That doesn't neatly fit for families that have a variety of other issues, such as pet support or visitation, property sharing, and care taking approaches unique to a child's specific and unique needs.

The best way to address these issues is to come to an agreement on the issue and include the resolution in a separation agreement which can then be presented to a judge. Many couples choose to do this by hiring their own attorneys to work out a negotiation with the other spouse's attorney. An increasing number of couples are also choosing to hire a mediator to meet with both spouses and discuss the questions and concerns that each individual has with the intention of facilitating an agreement.

Attorney Kelsey has been advocating on behalf of clients for years as a family law trial attorney, and is also a trained family law mediator in Massachusetts. Should you have any questions about individual representation or mediation, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour initial consultation.

The Massachusetts Lawyers Weekly article referenced in this post can be found with a subscription at www.masslawyersweekly.com.

Special thanks to Christopher Boylan of Walter A. Costello, Jr. & Associates for his assistance in this post.

I don't know why exactly, but it is the case every year that we get busier with divorce cases around Valentine's Day. According to the New York Post and Avvo.com searches for divorce attorneys rise by as much as 40% around Valentine's day. Maybe this is because the whole world seems to be saturated with sickening sweet messages for people that are "in love." Or maybe it's the numerous reminders for couples that used to enjoy Valentine's day that they no longer have reason to celebrate.

Regardless of the reason, if you are part of that 40%, consider giving yourself a Valentine's Day gift. Even if you are considering the intimidating process of starting a Divorce, remember that litigation is not the only way. Other options, such as Mediation, could be faster or cheaper. To read more about the advantages of Mediation check out these previous posts:

What are the Advantages & Disadvantages of Mediation?
Why Are More Couples Choosing Divorce Mediation?
Dramatic Impact of Mediation on Children of Divorce
Another Benefit of Mediation: No Waiting in Court

There are advantages and disadvantages of mediation and you should consider both in deciding whether mediation is right for your case.

For instance, many people choose mediation because they believe it will be cheaper. In all cases that may not be true, but there is a difference between cost and value. Even if the cost of your mediation is higher than you were expecting, you can at least be confident that the time you were charged by your mediator was time spent on moving your case forward. Unfortunately this is not always the case when you go to Court.

Because there are so many other people seeking relief from the Court, I often have to explain to clients what I call "Hurry up and Wait." You have to be at the courthouse at your appointed time for any Motions, Pre-Trials, Contempt hearings, Trials, or other hearings. But there will likely be other cases waiting for hearing at that same time. And even if you are right on time, you will still likely spend hours waiting for your case to be heard. That time is time that your attorney cannot spend working on other cases and is therefore time you will be charged for. Essentially this means that when you go to Court you can end up paying your attorney for multiple hours, for work that could have been completed in a much shorter time working with a mediator.

Of course going to court is sometimes necessary because mediation requires both parties to voluntary participate. But if you are trying to decide whether to use mediation or not, think about whether you want to solve your problems, or wait (and wait, and wait) for someone else to solve them for you.

Cliff is a doctor and Clare is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Some of the children live at home but the number is constantly changing because Clare and Cliff keep their doors open to their children.

Clare recently informed Cliff that she has met another lawyer who she feels has more in common with and she wants a divorce. Cliff is shocked but after dealing with the initial shock, he realizes that he does not want the process to be acrimonious or to affect their relationship with the children. He has seen how other doctors have had their families and practices torn apart by drawn out litigation and does not want his children or patients to suffer.

Courts in Massachusetts are backed up, always have been backed up, and will presumably be backed up for the foreseeable future. Because of this, divorce cases can often take over a year to complete, and the time that is actually spent in court can feel rushed due to the number of other cases. All too often a decision is made by the court leaving one spouse feeling as if he or she did not get a chance to tell the full story.

Mediation provides an opportunity for divorcing spouses to discuss the process of their separation in a more personal and private forum than in a court room, often times saving the divorcing couple thousands of dollars by avoiding expensive litigation. Divorcing spouses are able to speak to one another in the presence of the mediator, and deal with issues that a court might not want to spend too much time on.

Attorney Justin Kelsey brings his experience as a family law attorney with him into mediation in order to provide divorcing spouses with useful feedback regarding the legal issues of divorce. If mediation is successful, both divorcing spouses can go to court with a separation agreement drafted by the attorneys at Kelsey & Trask, P.C. to be reviewed by the judge before entering it as a judgment. If you and your spouse have decided that you want a divorce, but would like the process to be handled carefully and privately without having to spend a fortune and put your life on hold for years as the court process plays out, or if you have any questions as to how divorce mediation works, call attorney Justin Kelsey to schedule a free one-hour consultation at 508 655-5980.

The votes are cast - The Cleavers and Mediation:

Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).

Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much.

Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has found. Agreeing with the logic of using a mediator, June agrees and they attend their first mediation meeting.

At the first meeting, the Mediator explains how mediation works, telling Ward and June that the mediator does not represent either of them, and that their job is only to help Ward and June reach an agreement, not to steer them in any particular direction. The mediator explains that they will both have to provide a Financial Statement and that they should begin thinking about what they each want for a custody and visitation plan, and for the division of assets and liabilities.

After the meeting Ward informs June that he wants joint custody and that he will help her do her Financial Statement since he has all of the financial information. He also wants to sell the house and he asks her to agree to this immediately so they can list the house for sale as soon as possible.

June is worried that she doesn't know enough about their finances to know whether the house has to be sold. She also realizes that she doesn't really know what joint or sole custody means. June talks to her friends who all suggest that she meet with an attorney. After meeting with a few attorneys, June realizes she needs help and hires an attorney. Upon realizing that June has hired an attorney, Ward feels like June was trying to get an advantage behind his back and hires an attorney as well. They end up proceeding through litigation, because June's attorney insists on filing the Complaint for Divorce to protect the assets with the Automatic Stay and to provide for mandatory discovery. Eventually they settle their case at Pre-Trial.

COULD THIS HAVE GONE BETTER: Because of June's lack of knowledge about the finances it was likely that she would feel uncomfortable at some point in the mediation, even if Ward hadn't pushed her at the beginning to be more ready to make decisions. Her lack of information was going to make it difficult for her to make decisions. This could have been resolved by June being more aggressive, but if this has not been the pattern in the marriage it was unlikely to change now. For these reasons June needed an adviser/advocate, i.e. her own lawyer.

If the parties had communicated their intentions better, it is possible June and Ward would still have been able to use mediation, and just have their lawyers advise them individually as to the Agreement and disclosure of financial information.

This was likely a more ideal case for Collaborative Law, because of June's need for a representative. In Collaborative Law both parties and lawyers agree to commit to working towards a settlement and to not file litigation. In a true Collaborative Law agreement, the lawyers also agree that if the case goes to litigation that they will not represent the parties, i.e. both lawyers are thus committed to the settlement path as well. Although there's the danger of having to pay two lawyers each, the advantage is the great potential for a less acrimonious process.

Because both Ward and June committed to settlement, but just had an imbalance of power/knowledge, they would have been best served by Collaborative Law.


There's still time to vote for what the Huxtables and Kramdens should do: leave a comment here.