Choosing Between Massachusetts and Florida for an Uncontested Divorce

When spouses have connections to both Massachusetts and Florida — for example, one partner retains a Massachusetts address or the couple once lived in Massachusetts but now spends substantial time in Florida — they may choose which state to use for their divorce. In this post, I compare how uncontested divorces work in each state, highlight key procedural and substantive differences, and suggest considerations for couples who may qualify under both so that they can make a choice that works best for them.

Basic Structures: Massachusetts vs. Florida

Massachusetts (No-Fault 1A Uncontested Divorce).
In Massachusetts, parties may pursue a so-called “1A divorce” (Mass. G. L. c. 208, § 1A) when they both agree that the marriage has irretrievably broken down and have resolved all issues (property, debt, alimony, custody, support) in a written agreement. There is no special “simplified” dissolution procedure akin to what Florida offers; one uses the standard uncontested process, albeit with relatively streamlined steps when fully agreed.

Florida (Simplified Dissolution or Regular Uncontested Dissolution).

Florida offers two possible routes for an uncontested divorce:

1. Simplified Dissolution of Marriage, which is available only if strict criteria are met (e.g., no minor children, no alimony requested, full agreement on division of assets/debts, 6-month Florida residency). This is extremely fast and simple compared to any kind of divorce possible in Massachusetts.
2. A regular uncontested dissolution via the general divorce statute when one or more of those criteria does not hold.

Gerald Keane’s Florida Divorce Handbook notes that the simplified dissolution “allows couples who have no children or property disputes to file for divorce without an attorney,” thereby eliminating steps like service and extensive disclosure when full agreement exists.^[2]

But that shortcut is unavailable when there are children or financial complexities — in those situations, one must follow the fuller uncontested path under Florida’s general dissolution statutes.

Residency & Jurisdiction Requirements

A critical difference lies in how strictly each state requires residency (or domicile) before filing.

Massachusetts Residency / Jurisdiction.
Massachusetts does not impose a fixed six-month “waiting residence” requirement before filing an uncontested 1A divorce. Rather, one of two tests suffices:

• If the “cause” (i.e. the grounds or irretrievable breakdown) occurred in Massachusetts, then it is sufficient for one spouse to be a resident at the time of filing;
• If the cause did not occur in Massachusetts, then one spouse must have been a resident of Massachusetts for one full year before filing.

Many MA couples rely on the first criterion: they simply assert that the breakdown occurred in Massachusetts and provide a Massachusetts address for at least one spouse. The court does not check on whether the break down actually occurred in Massachusetts.

Massachusetts thus offers greater flexibility to dual-state couples in terms of residency and jurisdiction.

Florida Residency / Jurisdiction.
By contrast, Florida imposes a firm 6-month residency requirement before a dissolution may be filed. The simplified dissolution form (Form 12.901(a)) and instructions explicitly require the petitioner to have been a Florida resident for at least six months prior to filing. If that requirement is not satisfied, one cannot proceed even in an uncontested case.

Thus, for couples with only recent or sporadic Florida presence, Massachusetts may be the jurisdictionally safer option, given that Florida’s 6-month threshold is nonnegotiable.

A further strategic caution: if a Florida court grants a divorce but later a Massachusetts court is asked to enforce or recognize it (for example, for support or remarriage issues), courts may scrutinize whether the Florida court had a proper basis. In the case Thomas v. Thomas, a Massachusetts court declined to give full recognition to a Florida divorce when Florida domicile was dubious.

Massachusetts Procedure & Forms.

A Massachusetts uncontested 1A divorce requires, among other things:

• A Joint Petition for Divorce (CJD-101A)
• An Affidavit of Irretrievable Breakdown
• Financial statements from each party
• If children are involved, a custody/visitation affidavit and a Child Support Guidelines worksheet
• A separation agreement resolving all issues
• A certified marriage certificate, and notarized signatures
• A probate or family court hearing before a judge

One limitation is that, even when all is in order, the court issues a judgment nisi, which only becomes absolute after a 120-day waiting period following the judge’s approval. During that nisi period, the parties are still legally married.

Because scheduling hearings and obtaining final absolute status may be delayed by court backlogs, the entire process from filing to absolute judgment commonly takes 4–6 months (and sometimes longer in congested counties).

Florida Procedure & Forms.
If eligible for simplified dissolution, the Florida parties submit:

• The Joint Petition for Simplified Dissolution (Form 12.901(a))
• Any settlement agreement / property division agreement
• A Notice of Social Security number or waiver
• An affidavit of corroborating witness (to confirm residency)
• The parties generally must appear at a final hearing

Florida imposes a 20-day waiting period (unless waived) between filing and final hearing/entry of judgment. In favorable circumstances, the hearing may occur quickly, enabling the case to wrap up in weeks (depending on court schedules).

If the simplified path is unavailable, the regular uncontested dissolution process requires additional steps: service or waiver of service, separate petition and financial disclosures, and scheduling of hearing, among others.

Because the simplified route bypasses much of the procedural overhead, couples who fit its criteria (no minor kids, no alimony, agreement on division of assets) enjoy a leaner, faster path in Florida than they would in many competitive contested cases.

Waiting Periods, Finality, and Marital Status

A major practical difference affects how soon the divorce is truly final.

• In Massachusetts, after a judge signs the judgment nisi, one must wait roughly 120 days for the judgment to become absolute. Until then, the spouses remain legally married.
• In Florida (for uncontested or simplified divorces), once the court enters the final judgment after any statutory wait and hearing, the marriage terminates immediately—there is no extended nisi period.

Thus, Florida offers more immediate legal finality (where the case qualifies), while Massachusetts imposes a built-in delay even in uncontested settings.

Child Support, Post-Majority Support & College Obligations

One of the most significant substantive divergences appears in how child support and educational obligations are treated.

Massachusetts.
Under Massachusetts law, courts may order child support beyond age 18, under certain conditions. The statute authorizes support or educational orders for children who have attained age 18 but are under age 21 (and in limited cases up to age 23) if the child is enrolled in an educational program, resides with a parent, and is financially dependent. Many Massachusetts family court practitioners note that courts frequently continue support for college-aged children or order educational contributions from each parent even when formal support payments cease.

This flexibility to extend support into college years is a clear advantage for custodial parents in Massachusetts divorces.

Florida.
Florida’s default rule is that child support ends at the age of majority (typically 18), unless the parties have contracted otherwise or a court order states otherwise. Because the simplified dissolution process disallows minor children, the issue of post-majority support normally does not arise in that context. But even in broader Florida divorces, obtaining or enforcing continuing support into college is more difficult absent explicit agreement.

Therefore, couples in Massachusetts may benefit from a more generous statutory framework for supporting dependent college students than would normally be available in Florida.

Alimony / Maintenance Framework

Both states allow for spousal support or maintenance, but their rules differ in flexibility and structural constraints.

• Massachusetts has codified guidelines and durational limits. For marriages of 20 years or less, alimony cannot generally run indefinitely—its duration is capped relative to marriage length (e.g. for a marriage of five years or less, alimony may last at most half the number of months of the marriage). The alimony must not exceed a percentage of the difference in gross incomes (often around 30–35%) absent deviation, and it is modifiable. It typically terminates upon remarriage or cohabitation (subject to conditions).
• Florida, when not using the simplified dissolution, has more discretionary flexibility in awarding maintenance: types include durational, rehabilitative, permanent, and bridge-the-gap. But the simplified dissolution route expressly prohibits any request for alimony, so the parties must forego that possibility if they choose the easier path.

Thus, for couples planning the possibility of spousal support, Massachusetts’s more formulaic but predictable structure may offer more certainty; Florida may allow broader outcomes but only outside the simplified route.

Cost, Filing Fees, and Efficiency

From a cost perspective:

• Massachusetts’s filing fee for an uncontested 1A divorce is $215 (subject to waiver if you are both on Mass Health).
• Florida’s simplified dissolution typically costs around $400 (plus summons or clerk fees). For example, some county clerk websites list roughly $408 plus a $10 summons fee.

While Florida’s filing fee is higher, the simplified approach reduces procedural burden and legal costs, potentially making the overall cost lower in favorable cases. In Massachusetts, the lower fee may be offset by additional attorney or preparation time or delays in courts.

Nevertheless, the cost differential in filing is not so large as to outweigh jurisdictional and substantive advantages in many cases.

Pros and Cons for Dual-State Couples :

If you live part-time or have minimal ties to Florida, you may be tempted to try the simplified Florida route. The advantage is speed and minimal procedure: fewer forms, less court overhead, and more immediate finality once the judgment is entered. As Keane puts it, the simplified dissolution can “allow couples who have no children or property disputes to file for divorce without an attorney.”

However, that benefit comes with caveats. The 6-month Florida residency requirement is a rigid gatekeeper: if your Florida presence is too recent or weak, you cannot leverage that route. Also, the simplified path forbids any alimony and requires no minor children — a limitation that may not suit many couples.

By contrast, Massachusetts offers more leeway in jurisdiction: if one spouse retains a Massachusetts address or asserts that the breakdown occurred in Massachusetts, you may qualify even without a prolonged residence period. That makes it a safer fallback if Florida’s residency threshold is problematic. Moreover, Massachusetts allows greater possibility of extended child support into college years, and a more predictable alimony structure.

Yet Massachusetts has its own disadvantage: the 120-day nisi waiting period delays finality, keeping the parties legally married longer. The required forms and procedural steps may also feel more cumbersome, and court scheduling delays can stretch the timeline.

If your case is extremely simple (no children, no alimony, minimal assets), and you unambiguously satisfy Florida’s 6-month rule, Florida’s simplified route might be faster overall despite a higher filing fee. But if you anticipate needing post-majority support or alimony, or if your Florida residency is borderline or challengeable, Massachusetts may offer greater legal security and substantive flexibility—even at the cost of a delayed final decree.

Jurisdictional Risk and Judicial Recognition

One more caution: if a Florida divorce is challenged or litigated later in Massachusetts (for instance, over support enforcement or property claims), the Massachusetts court may examine whether the Florida court truly had jurisdiction (i.e. domicile, service, etc.). If the Florida filing was weak on those grounds, a Massachusetts court might decline full recognition or enforceability of parts of the decree. For borderline dual-state filers, that risk could weigh in favor of filing in Massachusetts where jurisdictional footing is more assured.

Conclusion & Recommendations

For couples with meaningful ties to both Massachusetts and Florida, the decision of where to file an uncontested divorce is more than procedural—it affects timing, cost, enforceability, and the reach of support or maintenance remedies. Florida’s simplified dissolution offers speed and minimal formalism, but only for a narrow class of cases and with strict residency and eligibility constraints. Massachusetts, by contrast, provides broader access and more flexibility—especially regarding child support post-majority and alimony—but imposes a 120-day nisi waiting period and somewhat heavier procedural demands.

In practice, a dual-state couple should carefully evaluate: (1) whether they satisfy Florida’s 6-month residency requirement; (2) whether they truly qualify under all simplified dissolution criteria; (3) whether they anticipate needing extended child or spousal support; and (4) whether the jurisdictional strength of a Massachusetts filing is more secure. In many borderline or support-sensitive cases, Massachusetts may offer a safer, albeit slower, path. But when conditions are ideal and both parties agree fully, Florida’s streamlined route may be attractive.

Footnotes & References

1. Amato, Paul R., “Research on Divorce: Continuing Trends and New Developments,” Journal of Marriage and Family 72, no. 3 (2010): 650.
2. Keane, Gerald B., Florida Divorce Handbook (6th ed. 2013), discussion of simplified dissolution procedure, overview of no-fault and procedural streamlining.
3. Oldham, J. Thomas, Divorce, Separation, and the Distribution of Property (Law Journal Press, 2021).

Post by Benjamin Bailey, PhD

A History of Divorce Mediation in the United States

Divorce mediation emerged in the United States most immediately with the adoption of “no-fault” divorce across the country, starting with California in the 1970’s. It did not emerge ready-made, out of thin air, however. Rather it emerged from a broader movement to develop alternative dispute resolution (ADR) processes in response to growing dissatisfaction with the adversarial legal system in the 20th century. The history of mediation can be situated within evolving legal and cultural attitudes toward conflict resolution, drawing from both grassroots community initiatives and institutional reforms, not necessarily divorce and family law.

Early Roots of Mediation in the U.S.

Mediation in the United States has deep roots in American legal and cultural traditions and perhaps even in an egalitarian American ethos. Judith Saul observes, “Mediation is rooted in a deep cultural preference for informal, community-based conflict resolution, often grounded in religious and civic values”¹.  At the very heart of divorce mediation is the idea that couples themselves, rather than a judge, make the decisions about how to disentangle from each other. While informal mediation has existed in various forms since colonial times, modern mediation began to gain momentum in the 1960s and 1970s with the rise of neighborhood justice centers and community mediation programs.

The Pound Conference and the Rise of ADR

An intellectual milestone for mediation came with the 1976 Pound Conference (named after law professor Roscoe Pound), where Harvard Law Professor Frank E.A. Sander proposed the concept of the “multi-door courthouse,” envisioning courts offering a range of dispute resolution processes, including mediation². This vision inspired significant interest in ADR and laid the groundwork for mediation’s eventual integration into family law systems.

As Jay Folberg noted in his early overview, mediation’s growth was driven both by “practical concerns with court congestion and cost” and by a philosophical belief in party self-determination³. By the late 1970s, pilot programs for divorce mediation were being tested in several states, often in conjunction with family courts.

Institutionalization of Divorce Mediation

By the 1980s, divorce mediation was increasingly institutionalized, with courts in many jurisdictions either encouraging or requiring mediation in custody and visitation disputes. Jacqueline Nolan-Haley describes this as part of the broader “court-connected mediation” movement, which sought to integrate mediation into the judicial system while maintaining its core principles of voluntariness and neutrality⁴.

It’s important to note that two forms of divorce mediation emerged—court-required or court-based, and voluntary divorce mediation that was part-and-parcel of the “no-fault divorce” transformation. Court-based mediation might be required of a couple who were litigating in court. Critics have argued that this allowed a more powerful spouse to gain advantage over the other spouse because of the pressure to reach agreement in the institutional setting of a court divorce case.

“Voluntary mediation”, in contrast, was when couples decided to use mediation to reach agreements and have a neutral mediator or attorney prepare all court documents before a case even reached court. In this context, there is less pressure to reach agreement, and the couple are doing mediation based on their own free will rather than the order of a judge.

Divorce mediation gained rapid acceptance partly because it was seen as “a humane and efficient alternative to litigation, reducing emotional and financial costs for families”⁵. At the same time, research began to examine whether mediation actually met its promised benefits.

Research on Divorce Mediation Outcomes

By the 1990s, empirical studies evaluated divorce mediation’s effectiveness. Joan Kelly found that mediated divorces were generally less expensive than adversarial proceedings, though cost savings varied by case⁶. Robert Shaw’s meta-analysis reported that mediation tended to produce higher rates of compliance with agreements and greater satisfaction among participants⁷.

Perhaps the most influential long-term study came from Robert Emery and colleagues, who followed families for nine years after custody disputes. They found that parents who mediated had more frequent and positive contact with their children than those who litigated⁸. These findings reinforced the belief that mediation could produce not only procedural efficiency but also long-term relational benefits.

Theoretical and Professional Developments in Divorce Mediation

The legal profession’s engagement with mediation evolved over time. As Bryan Clark notes, lawyers initially viewed mediation with skepticism, concerned about its informality and potential to undermine legal rights⁹. In an adversarial legal system, lawyers were accustomed to zealous advocacy and the rights of clients to professional representation. Over time, however, many lawyers adapted their roles, serving as mediators themselves or representing clients in mediation, especially as no-fault, uncontested (amicable) divorces became a larger and larger percentage of divorce cases.

Eric van Ginkel’s analysis of U.S. mediation law shows how states developed statutes and court rules to govern mediation, often balancing confidentiality with enforceability¹⁰. These legal frameworks reinforced mediation’s legitimacy and clarified the roles of mediators and courts.

Contemporary Perspectives and Future Directions

Divorce mediation has moved from the margins to the mainstream of family law, but challenges remain in ensuring quality, accessibility, and fairness¹¹. Critics point to potential power imbalances between spouses and question whether mediation can adequately protect vulnerable parties. Nevertheless, the historical trajectory suggests that mediation will remain a central feature of U.S. divorce practice.

The history of divorce mediation in the United States reflects broader shifts in legal culture—from adversarialism toward more collaborative, problem-solving approaches—and to changing attitudes toward marriage and relationships. With roots in community traditions, court reform initiatives, and shifts in assumptions about marriage, it represents a successful development of a process that balances efficiency, fairness, and respect for human relationships.

References

1. 1. Saul, Judith. ‘The legal and cultural roots of mediation in the United States.’ Opinio Juris in Comparatione 1 (2012).
   2. Sander, F.E.A. ‘The Varieties of Dispute Processing.’ Address at the Pound Conference, 1976.
   3. Folberg, Jay. ‘A mediation overview: History and dimensions of practice.’ Mediation Q. (1983): 3-13.
   4. Nolan-Haley, Jacqueline M. ‘Court mediation and the search for justice through law.’ Wash. ULQ 74 (1996): 47.
   5. Chantilis, Peter S. ‘Mediation USA.’ U. Mem. L. Rev. 26 (1995): 1031.
   6. Kelly, Joan B. ‘Is Mediation Less Expensive? Comparison of Mediated and Adversarial Divorce Costs.’ Conflict Resolution Quarterly 7, no. 1 (1990): 71-84.
   7. Shaw, Robert. ‘Divorce Mediation Outcome Research: A Meta-Analysis.’ Conflict Resolution Quarterly 18, no. 4 (2001): 429-439.
   8. Emery, Robert E., Laumann‑Billings, Lisa, Waldron, Mary C., Sbarra, David A., & Dillon, Peter. ‘Child custody mediation versus litigation: Outcomes at 9 years.’ Journal of Consulting and Clinical Psychology 69, no. 1 (2001): 1-16.
   9. Clark, Bryan. ‘The History of Lawyers and Mediation.’ Lawyers and Mediation. Berlin, Heidelberg: Springer, 2012. 1-28.
   10. Van Ginkel, Eric. ‘Mediation under national law: United States of America.’ Mediation Committee Newsletter (2005): 43-58.
   11. McEwen, Craig A., & Maiman, Richard. ‘Divorce and Family Mediation: History, Review, Future Directions.’ Family Court Review 56, no. 3 (2018): 417-432.

Blog post by Benjamin Bailey, PhD, Professor of Communication at the University of Massachusetts

Social Security and Divorce: Spousal Benefits

If you were married for 10 or more years, you may be eligible to claim retirement benefits that are calculated based on your ex-spouse’s work record, rather than your own. The maximum benefit you can receive based on an ex-spouse’s work record is an amount equal to 50% of what that ex-spouse would receive at Full Retirement Age (age 67 if born after 1960). This is particularly important if you do not have a long record of work or had very low earnings compared to your ex-spouse. In such cases, a Social Security benefit calculated based on your ex-spouse’s lifetime work record may result in a higher benefit for you.

There are various, somewhat complicated rules for claiming spousal benefits and for determining how much you will receive. They have to do with:
a) how long you were married,
b) how long you have been divorced,
c) whether YOU are currently remarried,
d) how old YOU are,
e) how old your ex-spouse is,
f) the age at which YOU claim Social Security benefits,
g) whether your ex-spouse has claimed Social Security benefits yet,
h) whether your ex-spouse is alive or dead, and
i) the relative value of Social Security benefits based on YOUR work record versus the value of a percentage (between 32.5% and 50%) of benefits calculated on the basis of your ex-spouse’s work record.

The most basic question for divorcing spouses, however, is simple: “Can I received Social Security benefits based on my ex-spouse’s Social Security work record?”

The answer is, yes, you can receive Social Security benefits that are calculated based on an ex-spouse’s work history if each of the following four conditions is met:

1) you were married to that ex-spouse for at least 10 years;

2) you have reached at least age 62;

3) a) that ex-spouse has begun collecting Social Security OR b) the ex-spouse has reached at least age 62 AND the two of you have been divorced for at least two full, continuous years;

4) you are not currently married to someone else (there is an exception to this, for survivor benefits, if your ex-spouse has died; see below).

Once you have determined that you ARE eligible to receive benefits that are calculated based on your ex-spouse’s work record, you only have to make two decisions: 1) at what age between 62 and 67 should you claim benefits based on your ex-spouse’s record, and 2) should you avoid or delay remarrying, which would end your Social Security spousal benefits (unless you are over 60 and your ex-spouse has died, in which case you could receive survivor benefits).

How long do I have to be married to claim Social Security based on my ex-spouse’s record?

You must have been married to your ex-spouse for at least 10 years to qualify for benefits on their work record. The 10-year rule is strict: the marriage must have lasted a full 10 years from the wedding date to the date the divorce is final.

Does claiming on my ex-spouse’s record reduce their Social Security benefit?

No. This is a very common misunderstanding and myth. Claiming benefits based on your ex-spouse’s record does not affect their benefits in any way. Their benefit will not be reduced. They will not be notified, and their current spouse (if they are remarried) will still receive their full spousal or survivor benefit if eligible.

What happens if I remarry?

If you remarry, you cannot collect spousal benefits based on your ex-spouse’s work record unless this later marriage also ends (e.g., through divorce or death). In that case you would no longer be married, and you would thus be eligible for spousal benefits from the original ex-spouse.

If you remarry after age 60, (age 50 if you are married) you can still claim survivor benefits based on your ex-spouse’s record if they have died.

What if my ex-spouse remarries?

Your ex-spouse’s remarriage(s) have no effect on whether or not you are able to claim spousal or survivor benefits. What matters is that you are currently unmarried.

Their new marriage or your ex’s current spouse’s claim has no effect on your eligibility or the benefit amount you may receive.

Can I claim spousal benefits if we’re still married but planning to divorce?

Yes—if you’re currently married AND your spouse is already collecting benefits, you can claim a spousal benefit. If you later divorce, you may continue receiving the spousal benefit so long as the marriage lasted at least 10 years and you do not remarry.

If you’re still married and your spouse hasn’t yet filed, you can NOT claim a spousal benefit until they do.

What if my ex-spouse hasn’t filed for Social Security yet?

If you’ve been divorced for at least two years, and your ex is at least age 62, you can claim a spousal benefit even if they haven’t filed. This “independent entitlement” rule applies only to divorced spouses.

Can I claim survivor benefits if my ex-spouse dies?

Yes. If your ex-spouse dies and your marriage lasted 10 years or more, you may be eligible for survivor benefits—even if they were remarried. You can receive a benefit equal to 100% of what their benefit amount (not just 50%) starting as early as age 60 (or 50 if disabled).

If you remarry after age 60, you can still claim survivor benefits (but not spousal benefits) based on your ex-spouse.

What’s the best age to claim benefits?

This is complicated, and the answer depends on your financial situation and life expectancy. You can claim as early as age 62, but your monthly benefit will be permanently lower than if you waited. At age 62 (if born in 1960 or later), your spousal benefit would be equivalent to 32.5% of the benefit your ex-spouse receives at his or her Full Retirement Age. For each month you wait after turning 62, your percentage goes up by about .3%, so your maximum of 50% is reached at your Full Retirement Age (age 67, if born in 1960 or later).  

Note that spousal benefits do not increase after full retirement age, but benefits based on your own individual work record do increase after age 67, up until age 70. If you continue working until 70, your own individual social security might exceed your spousal benefit, in which case Social Security would award you the higher amount.

Can I strategically file for my spousal benefit and my own, individual benefit at different times to maximize my overall, lifetime benefit?

No, unless you were born before 1954. The Bipartisan Budget Act of 2015 eliminated the option for “restricted application” for those born after 1953. When you file for Social Security, it is considered to be an application for any benefits you are eligible for. (This is called “deemed filing.”) Social Security will determine whether your spousal benefit or individual benefit is higher, and award you the higher amount.

After my divorce, I remarried, but my new spouse died. Can I get survivor benefits based on my second spouse’s work record?

Yes, if you are at least 60 (or 50 if disabled), you were married at least 9 months, and you are married when your spouse dies, you can qualify for survivor benefits.

After my divorce, my first spouse died. Can I get survivor benefits based on my first spouse’s work record if I remarry?

If you are at least 60 when you remarry, you remain eligible for survivor benefits on your first spouse’s record.

What documents do I need to apply for benefits based on an ex-spouse’s record?

You’ll need:

• Your birth certificate
• Your marriage certificate and divorce decree
• Your ex-spouse’s Social Security number (or at least their birthdate and where they were born)
• Your own Social Security number and ID

You don’t need your ex-spouse’s permission, and they won’t be notified.

Footnotes

1. SSA.gov: Retirement Benefits for Divorced Spouses
2. Dillender, M. (2022). Social Security and Divorce. Journal of Pension Economics & Finance.
3. Code of Federal Regulations: § 404.331 Conditions for Spousal Benefits
4. SSA.gov: Retirement Planner – If You Are Divorced
5. SSA FAQ: Will My Ex-Spouse Know I’m Claiming Benefits?
6. Diamond, P.A. (2004). Social Security Reform. Oxford Review of Economic Policy, 20(1), 133–145.
7. SSA.gov: Survivor Benefits for Divorced Spouses
8. Gustman, A.L., & Steinmeier, T.L. (2000). Social Security, Pensions and Retirement Behaviour within the Family. Journal of Applied Econometrics, 15(5), 495–511.

Posted by Professor Benjamin Bailey, PhD

Is Divorce Mediation Fair to Women? Gender, Power, and the Role of the Mediator

Since no-fault divorce laws were established across the US in the 1970’s and 1980s, divorce mediation has become an increasingly popular alternative to litigation for couples seeking to dissolve their marriages. It offers speed, privacy, lower costs, a more amicable process, and greater involvement of the parties in crafting their agreement. But is it truly fair for everyone involved—especially women? While mediation can indeed offer advantages, a significant body of scholarship suggests that it can also disadvantage women, particularly when the mediator is passive and does not take into account or address common gender differences in negotiation styles and relational dynamics. To ensure fairness, especially for women, this post argues that divorce mediation should be conducted by active, evaluative mediators who are able to level the playing field for spouses of unequal power and with different conversational styles.

Gender and Power in Divorce Mediation

In her widely cited article, “The Mediation Alternative: Process Dangers for Women” (1985), legal scholar Tina Grillo highlights that the very qualities that make women socially effective can make them vulnerable in mediation. Women are often socialized to value cooperation and to avoid confrontation—traits that can be exploited in a process that prioritizes compromise over justice. She notes that women may be more likely to prioritize preserving relationships and avoiding conflict, even at the cost of their own interests. When confronted by an assertive spouse, women will tend to make concessions to maintain their personal connection, even when it harms their side of the financial ledger in divorce.

Similarly, Penelope Bryan in her article, Killing Us Softly: Divorce Mediation and the Politics of Power (1992), delves into how gendered communication styles affect mediation outcomes. She argues that men are socialized to assert power, control conversations, and pursue clear goals, whereas women are often taught to emphasize connection, empathy, and accommodation.

In a mediation setting, if the mediator acts more as a passive facilitator than a knowledgeable expert on divorce parameters, these differences become critical. Bryan warns that a facilitative approach risks amplifying male dominance in negotiation, particularly in emotionally charged or complex divorces. The danger, she writes, is that “women may walk away with less than they deserve because the process fails to challenge the dynamics that shaped the relationship.” Women may downplay their needs, defer to their spouse, or have less knowledge of family finances than the husband. If the mediator does not play an active role in making standards of fairness clear and prominent, the process can effectively rubber-stamp a lopsided agreement.

While not all men and women follow these patterns of course, there is considerable academic research showing that these patterns are common in among American men and women. Linguist Deborah Tannen, for example, has shown that men tend to use conversation to assert status and power, while women tend to use it to build connection. In a mediation setting, this often means men dominate discussions, while women defer or prioritize harmony over asserting needs. When mediators do not manage these tendencies, women’s voices will be underrepresented in the resulting divorce agreement.

Why Passive, or “Facilitative”, Mediation Can Fail Women

Facilitative mediation, in which the mediator remains neutral and merely facilitates discussion, relies on the assumption of equal bargaining power and parties who are familiar with divorce law and typical parameters for Massachusetts divorce. But this assumption is often false. As Bryan and Grillo both emphasize, the very structure of mediation may entrench inequality if the mediator is passive.

In practice, many women are at a disadvantage in negotiations due to:

• Financial dependency or lack of financial knowledge
• Greater concern for children’s emotional well-being than for financial outcomes
• Conflict-avoidant behavior
• Underestimation of both their value as a person and their legal rights

Unless the mediator actively questions, educates, and rebalances these dynamics, facilitative mediation risks producing outcomes that have been “facilitated with neutral mediation techniques” but are fundamentally unfavorable to women.

The Case for Active, or “Evaluative”, Mediation

An evaluative mediator, by contrast, takes a more engaged role. Evaluative mediators:

• Provide legal information and note when a proposal would not fall within common legal parameters
• Point out when one spouse or the other is making concessions
• Suggest ranges of reasonable outcomes based on law and precedent
• Provide ideas from experiences mediating with other couples
• Ensure both parties understand the long-term implications of decisions

This approach can be particularly helpful when one party—often the woman—is unwilling or unable to advocate strongly for herself. Rather than seeing evaluative mediation as coercive, it can be viewed as a leveling of the playing field of negotiation that takes into account power differentials and differences in conversational style.

Conclusion: Leveling the Playing Field with ACTIVE Mediation

While “facilitation” and “neutrality” are defining features of mediation, passive facilitation alone will result in many unfair agreements. Divorce mediation is not automatically unfair to women, but women will suffer in many passively facilitated mediations. As the research by Grillo (1985), Bryan (1992), and Brinig (1995) demonstrates, women face systemic and communicative disadvantages in mediation that are not addressedby neutrality alone.

To truly make mediation fair for women, practitioners must recognize that:

• Gendered communication and negotiation styles matter
• Power imbalances are not always visible but have real effects
• Evaluative mediators can play a crucial role in ensuring equity

The key to fairness for women (or any party with less power than their spouse) in divorce mediation lies not in neutrality of the mediator, but the informed, active engagement of the neutral mediator.

References:

• Grillo, T. (1985). The Mediation Alternative: Process Dangers for Women. Yale Law Journal, 100(6), 1545-1610.
• Bryan, P. (1992). Killing Us Softly: Divorce Mediation and the Politics of Power. Buffalo Law Review, 40(2), 441-523.
• Brinig, M. F. (1995). Does Mediation Systematically Disadvantage Women? William & Mary Journal of Women and the Law, 2(1), 1-32.
• Tannen, D. (1994). Gender and discourse. Oxford University Press.

Posted by Professor Benjamin Bailey, PhD

Facilitative, Evaluative, and Transformational are Functions, not Types, of Divorce Mediation

Divorce mediation websites often discuss mediation as if there were three distinct types of mediation: facilitative, evaluative, and transformative. This is highly misleading, as there are not three discrete types of divorce mediation. The three terms–facilitative, evaluative, and transformative—refer not to discrete types of mediation but rather to specific practices or functions within a divorce mediator’s way of working. All mediators will engage in practices that serve these three functions to one extent or another, so it is a question of emphasis in a mediator’s style, rather than of discrete types.

The important dimension for divorce mediation is whether a divorce mediator is relatively “facilitative” or relatively “evaluative” in their practice. These terms were popularized by Leonard Riskin in a highly cited 1996 article in the Harvard Negotiation Law Review entitled “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1(1), 7–51). In this article he conceptualizes facilitative and evaluative functions or strategies not as entirely discrete types but rather as ends of an axis or continuum.  (As will be discussed below, the transformational functions of divorce mediation are limited, and such transformational effects are much better pursued with a family counselor than in a divorce mediation.)

In practical terms therefore, the question you can ask a potential mediator for your divorce is not, “What type of divorce mediation do you do?” but rather, “Is your style of divorce mediation more on the facilitative end of the continuum or more on the evaluative end of the continuum?” Rephrased into everyday language, the question is “Are you a relatively passive mediator who facilitates our discussions and helps us communicate with each other? Or are you a relatively active mediator who not only facilitates communication, but also uses legal knowledge and experience to provide us with information about divorce law and common divorce practices and guides our discussion on the key decision points required by a divorce agreement?”

The Facilitative Function of Divorce Mediation

The facilitative function is the defining feature of divorce mediation. A neutral mediator helps spouses who may be experiencing conflict and strong emotions to have discussions about the terms of their divorce. The terms of the divorce are decided upon and agreed upon by the spouses. The mediator does not favor one side or the other and does not determine the terms of the divorce. The mediator is helping the couple to have reasonable discussions when they may not be able to do that on their own.

The mediator or attorney mediator prepares all the required court documents that reflect the couple’s decisions. The end result of this process is an “uncontested” divorce, in which the divorce agreement is presented to a judge who simply signs the agreement, divorcing the couple. The judge does not decide the terms of the divorce but rather signs documents making the couple’s own decisions a court order.

The Evaluative Function of Divorce Mediation

The evaluative function in divorce mediation is served when the mediator provides information about divorce laws and common divorce practices. The evaluative function is practiced when the mediator guides the couple to the decision points—regarding parenting plan, child support, and division of assets among others—that form the basis of the eventual divorce agreement. This guidance is crucial if a couple want to reach a reasonable agreement that a judge will approve. If one spouse says, “I’m not going to pay child support!” or “I earned the money during our marriage, so I’m going to keep the house and all our savings!”, the mediator can inform him or her that the law in Massachusetts requires child support and that property from the marriage belongs to both spouses, cutting short discussion of fantastical scenarios that are directly against the law in Massachusetts.

Many divorce mediators, seeing themselves as only facilitators, confuse providing legal information with providing legal strategy and therefore try not to provide legal information, thinking that this compromises their neutrality or imposes their perspective on the couple. This is not the case. Providing information to a couple in ways that facilitate discussions oriented to reaching an agreement that allows a judge to sign their divorce is a tremendous service to that couple. Scholar Leonard Riskin (1996) was particularly clear in arguing that mediator neutrality does not require mediator passivity, and that a mediator who provides abundant legal information to couples may be more respectful of party’s autonomy than a mediator who refuses to provide it.

The Transformative Function of Mediation

Divorce mediation can encourage and model reasonable modes of discussion for divorcing couples, having a transformative effect on the ways they communicate. The emotions of divorce can overwhelm couples, making it difficult for them to work together on the practical issues in divorce. If the couple has children, it is vital that they be able to communicate in effective ways as they continue to co-parent their children after divorce. Divorce mediation—with its emphasis on encouraging couples to communicate and craft the details of their divorce—can show couples that it is possible for them to work together on the practical issues they will continue to negotiate as exes and possibly co-parents.

The transformative function of mediation was at the center of Baruch Bush and Folger’s 1994 book The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. These authors see the possible empowerment of individuals to become self-aware and confident and the recognition of the perspectives and humanity of the other party to be the most important function of mediation. In fact, they argue that the goal of mediation should be moral and relational transformation, rather than reaching an agreement. In other words, if you experience some psychological and relational transformation, your divorce mediation is a success, even if you fail to come to agreement on the terms of a divorce and fail to create a divorce agreement that will enable you to divorce.

Needless to say, this degree of psychological growth is not what most couples seeking divorce mediation are looking for. Marriage counselors and family therapists—not divorce mediators–are specialists in helping couples to improve communication, work on their relationship, and experience personal growth.

Posted by Professor Benjamin Bailey, PhD

January 1, 2024

Congress just repealed the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO) which limited Social Security benefits for individuals and their spouses if one spouse worked for the schools, police, or government in Massachusetts. President Biden is expected to sign the bill into law in early January 2024.

This repeal, through bill HR 82, offers significant benefits for divorcing couples, particularly when dividing retirement benefits. Previously, WEP and GPO reduced Social Security benefits for individuals receiving pensions from non-Social Security-covered employment, such as state or local government jobs. This includes members of the Massachusetts Teachers Association (MTRS), State Employee Retirement System (SERS), and the Massachusetts Bay Transportation Authority (MBTA), among others.

The Windfall Elimination Provision (WEP) reduced the amount of Social Security that such government employees receive upon retirement in such a way that they received less than they would have received if they had never worked in a government job at all! In other words, if a person worked for 10 years for a private company that was paying into Social Security and then retired, that person would receive more Social Security than a Massachusetts teacher who worked 10 years for the same company, paying the same amount into Social Security, and then worked as a public school teacher for the rest of their career.

The Government Pension Offset (GPO) has even more implications for divorcing couples. Normally, after 10 years of marriage, a divorced spouse can qualify for a social security benefit that is equal in value to half of the benefit that their spouse receives. The spouse with the larger benefit does not “share” their benefit in any way with the ex-spouse or get less money. The spouse with the higher Social Security benefit keeps their entire benefit, and the ex-spouse gets one half as much, even if they never worked or contributed to Social Security.

The GPO law typically wiped out that spousal benefit completely, unless that person’s pension was very low, e.g., under $20,000, and their ex-spouse’s Social Security was very high.

This reduction often created financial inequities during divorce settlements, especially for spouses relying on their partner’s Social Security benefits post-divorce. This is particularly the case since most lawyers and judges do not know how to value Social Security benefits when they divide assets. They readily divide pensions, sharing the value of benefits between spouses, but they rarely calculate the value of Social Security benefits in order to fairly and equitably share assets. The fact that Social Security benefits cannot be divided with a QDRO, like other retirement plans, misleads the vast majority of judges and lawyers from dealing with their value.

Without a doubt, most lawyers and judges will continue to fail to calculate the value of a spouse’s social security benefits, but the situation is somewhat ameliorated now. The pension holding spouse, if they were married 10 years, will now be able to collect a meaningful amount of Social Security based on their ex-spouse’s earnings record.

Free Sample Massachusetts Separation Agreement Template .pdf

In September 2024, the Massachusetts State Probate Court finally released a Massachusetts Separation Agreement Form Sample as a free .pdf template download that you can download here. This is significant because the Separation Agreement is the most important divorce divorce form in Massachusetts–it is the divorce agreement. The state does not require that couples use this particular form, but they can. Most importantly, it finally lets people see all the basic issues that are addressed in an uncomplicated divorce, so that they can better understand and plan for the process.

In the remainder of this blog post, I give an overview of each section of the document to give you a better understanding of what is included in a Massachusetts divorce agreement.

Limitations and warnings about trying to use this Separation Agreement yourself

Before creating your own separation agreement, understand that the decisions you make are often final and legally binding. If you have any doubts about the terms, consult an attorney. Judges might reject parts of the agreement if they deem it unfair or if they believe one party doesn’t understand the terms. Make sure you and your spouse complete your Financial Statements first; these documents help in making informed decisions for the rest of the agreement. Note that the required Financial Statement forms–Long Form or Short Form–are extremely poorly designed and confusing and difficult to fill out if you have not filled them out before before.

Basic Agreement:

Clearly outline that both parties agree the marriage is over and that the terms are mutually acceptable. This section is crucial because it establishes the legal foundation for your separation. Ensure that both parties are on the same page about living separately and that any attempt at reconciliation is off the table. It’s helpful to include the exact date when the separation officially starts, as this can affect other decisions, like property division and support. In this sample, pages 2-4 have a lot of legalities but NONE of the substantive decisions you are making. This is confusing if you are trying to do your own agreement because the practical matters, at which you are expert and which form the foundation of your agreement, are in “Exhibits A-J”, which you would normally think of as secondary. Page 3 has the very tricky distinction between being “merged” or being “incorporated”, which trips up even some lawyers.

Financial Disclosure:

Transparency is key in the separation process. Be sure to gather all necessary financial documents—tax returns, bank statements, and details of debts and assets. Each party should fully disclose their finances to avoid any potential legal disputes in the future. Keep copies of the financial disclosures and ensure both parties agree on the accuracy. Failing to disclose assets or debts could lead to the agreement being overturned later.

Property Division:

Detail all your assets and liabilities, including real estate, bank accounts, vehicles, and personal property. Make a list of who gets what and ensure that both parties agree it is fair. If you want to keep a property or a particular asset, be clear about who is responsible for ongoing payments, such as mortgage or maintenance costs. Consider dividing smaller items like household goods ahead of time to minimize conflict during the official process.

Alimony:

If one spouse is seeking alimony, include the specific amount and duration of payments. Practical tip: consult Massachusetts alimony guidelines to ensure the amount is appropriate based on the length of your marriage and income levels. If you are waiving alimony, both parties should explicitly agree to this in writing to avoid disputes later. Note that future changes in financial circumstances, like remarriage, may end alimony.

Health Insurance:

Health insurance can be a critical issue, especially if one spouse relies on the other’s coverage. Clearly state who will maintain coverage and for how long. If children are involved, make sure to include their coverage as well. It is also important to outline how any additional costs, such as deductibles or uncovered medical expenses, will be shared. If you can, get confirmation from the insurance provider about the continuation of coverage post-divorce.

Taxation:

Decide whether you will file taxes jointly or separately during the divorce year. For future filings, outline who will claim any children as dependents. This can be particularly important for tax benefits like the Earned Income Tax Credit. If there is any existing tax debt, agree on who will pay it, and document this clearly. Misunderstandings here can lead to legal and financial complications later.

Debts:

Make sure both parties are clear about who will take on which debts. If one person is keeping a joint loan, like a mortgage or car loan, make sure they refinance it into their name if possible. This helps protect both parties from future financial entanglements. List all joint and individual debts in detail to avoid issues down the line, and attach supporting documentation if necessary.

Retirement Plans:

Retirement assets, such as pensions or 401(k) accounts, are often among the largest assets in a marriage. Ensure both parties understand how these will be divided. If a division is necessary, a Qualified Domestic Relations Order (QDRO) may be needed to legally split retirement plans without penalty. Consulting with a financial advisor may help you navigate complex retirement divisions and ensure you’re maximizing your financial benefits.

Life Insurance:

Life insurance is crucial if there are ongoing financial obligations like child support. Agree on whether life insurance will be maintained and who will be the beneficiary. If you’re the one receiving support, ensure the policy covers the necessary amount until your child or children reach adulthood. Get written confirmation from the insurer that the beneficiary designations align with the agreement.

Child Custody and Parenting Time:

When outlining custody, focus on what’s best for the children. Be as specific as possible regarding parenting schedules, including weekdays, weekends, holidays, and vacations. If you expect disagreements, it may help to include a mediator clause in the agreement. Flexibility is important, but the more detailed the parenting plan, the fewer conflicts you’ll face in the future.

Child Support:

Use the Massachusetts Child Support Guidelines to determine the appropriate support amount. If you deviate from the guidelines, be prepared to explain why, as the court will need justification. If child support is being paid, include how it will be paid—directly or through wage garnishment—and ensure it’s structured in a way that’s easy to track and enforce.

Education:

Decide how you will contribute to your children’s college or vocational education. A practical tip here is to agree on a percentage contribution based on each parent’s financial situation, rather than a fixed dollar amount, which can be harder to maintain if circumstances change. Be sure to address all post-secondary expenses, including tuition, housing, and textbooks, to avoid ambiguity later.

Extracurricular Activities:

Agreeing on how to split costs for activities like sports, music lessons, and camps is important. Be specific about what types of activities will be covered and set limits if necessary. It’s helpful to also agree on a process for how extracurricular activities will be chosen, especially if one parent tends to enroll the child in many activities. Keep receipts and maintain clear communication to avoid disputes.

The Value of Future Social Security Benefits in the Division of Marital Assets

For many divorcing couples, future social security benefits are their single greatest economic asset and the key to their future economic well-being. Despite this fact, the vast majority of family lawyers and judges in Massachusetts fail to understand and address the value of Social Security when couples divorce.

This blog post gives sample Present Values of Social Security for low, middle, and high income earners who are divorcing at age 45, 55, and 65. Knowing how much social security is worth can help guide you to a fairer division of assets.

You can figure out the EXACT present value of your Social Security by following this link, but it is a laborious process.

Understanding the “Present Value” of Social Security or Pension Payments

The “present value” of a future stream of payments is simply the lump sum you would have to pay someone right now in order for them to guarantee you that future stream of payments.  It is calculated based on interest rates, a person’s age and sex, the dollar value of the benefit, and the interval between the present time and the time when benefits start.

Using the present value of future streams of benefit payments allows you to compare the value of a future pension or Social Security to other assets in the present. Thus, you can directly compare the present value of Social Security with the current value of money you have in a bank account or the value of house equity you currently have.

Who Needs to Pay Attention to the Value of Social Security When Divorcing?

This value of Social Security in divorce is particularly important to understand and address in two specific situations:

Situation 1) When one spouse has a significant public pension from a Massachusetts union such as MTRS or SERS and the other spouse is not a public pension participant but has a full work history with contributions to Social Security.

The spouse who is a member of MTRS or SERS or other MA public unions does not pay into Social Security and will qualify for very, very low Social Security benefits. In place of Social Security benefits, they will receive a significant pension from the state.

Situation 2) When one spouse has worked many years, paying Social Security tax, and the other spouse has a little to no work history.

Situation #1: One spouse has MA public pension and the other spouse has Social Security

When couples get divorced in Massachusetts, they divide their marital assets (e.g., houses, bank accounts, cars, and retirement accounts) in a way that is “fair and equitable.” A couple, for example, can sell their house and share the profits, or they can transfer half of the part of their 401k account that was earned during marriage to the other spouse.

Similarly, pensions such as MA SERS or MTRS can be shared between divorcing spouses. A special legal document, called a DRO, gives the retirement board instructions to send a portion of future pension benefits directly from a participant’s pension to the alternate payee, ex-spouse once the benefits are in pay-out status.

By federal law, Social Security benefits can NOT be shared between a worker and his or her divorced spouse in the way that state, county, city, or private pensions can be shared. A worker will receive 100% of their Social Security benefits when they retire—the benefits will not be divided and shared with an ex-spouse.

The fact that Social Security benefits cannot be split with an ex-spouse has led many family lawyers and judges in MA to ignore the value of Social Security at the same time that pensions such as MA SERS and MTRS are divided between spouses. This can be extremely unfair to the pension participant.

In fact, the Massachusetts Supreme Judicial Court has ruled that it is proper to consider anticipated Social Security benefits when dividing other marital assets (Mahoney v. Mahoney 1997, pp. 446-447).

Take the example of a divorcing, 55-year-old couple where the wife is a teacher with an MTRS pension that will pay $3,000/month at retirement. Because she participated in the MA pension, she did not pay into Social Security and will not receive Social Security benefits. Assuming the couple were married during her entire career, in most divorce agreements, her future $3,000/month pension payments will be divided 50/50 with her ex-husband.

Her husband, in contrast, has been paying into Social Security, and he expects a $3,000/month Social Security payment at retirement. This benefit will not be shared! This division of assets is not fair to the pension participant, who loses half of her pension while her ex-spouse keeps 100% of his Social Security benefit.

You can see another example of this unfair division in this blog post from Divorce Financial Solutions.

Situation #2: One Spouse Has Long Work History and Other Spouse Has Little Work History

Income and assets gained during a Massachusetts marriage are generally considered to be marital property and belong to both spouses, even if only one spouse was earning the income. Because Social Security benefits cannot be divided, this can lead to an unfair division of assets if one spouse was a stay-at-home spouse and the other spouse has a long history of working and paying Social Security taxes.

If one spouse has little work history, they can still get Social Security benefits based on their ex-spouse’s work history under certain conditions. If the stay-at-home spouse was married to the working spouse for at least 10 years, has reached age 62, and is not remarried, the stay-at-home spouse can receive a benefit that is 50% of what their working ex-spouse receives. The working spouse’s benefit is not reduced—they still receive 100% of their benefit. The non-working spouse simply receives a benefit that is half the size.

This is unfair to the non-working spouse because income and assets—including 401k’s, IRA’s, and pensions—during marriage in Massachusetts are generally split 50-50. If an ex-spouse gets 100% of their Social Security amount and the other ex-spouse only gets 50% as much, the 100% spouse is getting 2/3 of the total value of the Social Security asset.

For example, a high earning ($160,000/year) 65-year-old who retires will receive Social Security benefits with a present value of $628,059. The spouse would thus receive benefits worth half as much, i.e., $314,029.50. Assuming that all the working years were during marriage, one spouse is walking away with $314,029.50 more in assets than the other spouse.

Present Value of Social Security for Low, Medium, and High Earners at Age 45, 55, and 65

The chart below gives the present values of Social Security for three levels of income and three ages.* To estimate the present value of your (or your spouse’s) Social Security, simply find the box that is closest to you in age and closest to you or your spouse’s annual income.

Lower Earner Value of Social Security

A lower earner is defined as someone earning $35,000/year at age 45, $50,000/year at age 55, and $60,000/year at age 65.

Medium Earner Value of Social Security

A medium earner is defined as someone earning $65,000/year at age 45, $85,000/year at age 55, and $105,000/year at age 65.

Higher Earner Value of Social Security

A high earner is defined as someone earning $100,000/year at age 45, $130,000/year at age 55, and $160,000/year at age 65. Because only the first $168,000 of income (in 2024) is subject to Social Security tax, incomes above $160,000 do not meaningfully raise future Social Security benefits.

*Assumptions and methods.

Future social Security Benefits were calculated using the Social Security Quick Calculator https://www.ssa.gov/OACT/quickcalc/, which uses your current annual income (rather than your exact earnings record) to estimate your annual benefit. It assumes an annual COLA of 2.4%.

Present values were calculated using the GATT method and a 3.5% 30-year bond rate on ValueYourPension.com. Calculations were done for 45, 55, and 65 year old males who were retiring at age 65.

This post explains how to calculate the present value of future Social Security benefits. This is important for divorcing couples, because it gives them a concrete, present value for these future benefits that allows them to determine a “fair and equitable” division of the rest of their marital assets.

While Social Security benefits cannot be divided between divorcing spouses (which makes it different from other pensions), the Massachusetts Supreme Judicial Court has ruled that it is proper to consider anticipated Social Security benefits when dividing other marital assets (Mahoney v. Mahoney 1997, pp. 446-447).

To calculate the present value of your Social Security benefits, you must first calculate what your future Social Security “monthly retirement benefit” would be if you:

a) stopped working now, but
b) waited until a normal retirement age to begin collecting.

The government has a calculator that will allow you to calculate this if you have a record of your “Taxed social security earnings” for each year that you have worked and you choose the specific calculator settings that I describe below.  You can find a record of your “Taxed social security earnings” for each year that you have worked in your online “my Social Security” account.

Download instructions for Social Security Present Value calculation in .pdf

Create a “my Social Security” account

If you do not have a “my Social Security” account, you can create one by going to to https://www.ssa.gov/myaccount/ and clicking the blue button “Create an Account.” If the website can recognize your email address or phone number, you can set up the account during a single session on your computer. If the website can’t recognize your phone or email address, you will have wait for a verification code via postal mail to finish setting up your account.

Access the year-by-year history of your “Taxed Social Security Earnings”

Once you have an account, or if you already have one, you can see your taxed Social Security income, by year, up until the present. Log in to your “my Social Security” account and under the “Eligibility and Earnings Heading” click on “Review your full earnings record now”.

The columns will look like this.

You may want to take a screen shot that shows the columns “Work Year” and “Taxed Social Security Earnings” and includes ALL the years for which you have Taxed Social Security.

Alternately, you can just keep this window open while you access the Social Security Online Benefits calculator described in the next step. You will need to enter the information from this year-by-year chart into a similar chart in the Online Benefits calculator, so you can just copy and paste if you keep both windows open at the same time.

Use the Social Security Online Benefits calculator to calculate your anticipated benefits

1. Once you have a record of each year’s “Taxed Social Security Earnings,” go to the SS Online Benefits calculator at:

https://www.ssa.gov/benefits/retirement/planner/AnypiaApplet.html

2) Fill in the information they request on this webpage, following these guidelines exactly:

• Age at retirement: Choose the age at which you plan to retire. The minimum age allowed is 62.
• Today’s dollars or future dollars: Choose “future (inflated) dollars”
• Annual earnings: Enter the dollar values for your “Taxed Social Security Earnings” for each year from the chart that you accessed in your “my Social Security account”. (Yes, this is laborious.)
• Earnings in 2024 (or current year): Enter the approximate amount you will have earned for the current year by the time of your separation or divorce.
• Earnings in 2025 (or next year) and later: Enter “0”. (This is important!)

 3) Press the blue “Calculate Benefit”

4) Write down the number from “Your monthly retirement ” This amount is to the right of “Benefit estimates”, below the blue “Calculate Benefit” button.

• Record this “monthly retirement benefit” number and the age you entered for “Age at Retirement.”
  • • You will need both of these numbers in order to calculate a Present Value of your future monthly benefits (see below.)
• Maybe take a screenshot or other easy-to-find record of the chart showing your year-by-year Taxed Social Security Earnings.
  • • You will need to know the years for which you have Taxed Social Security in order to calculate a marital coverture ratio (i.e., to calculate how many of these years were during your marriage)

Use an Online Present Value Calculator or Hire an Actuary to Calculate the Present Value of the anticipated monthly benefit

You can use an instant present value calculator at https:/valueyourpension.com ($50) to calculate the present value of your future stream of social security benefits, or you can contact an actuary or pension analyst, who will charge $175+, may be unfamiliar with working with Social Security benefits, and will probably take a few weeks to get back to you with the present value calculation.

Can a Divorce Mediator Give Legal Advice?

No! Yes!

“Can a divorce mediator give legal advice” is a trick question because “legal advice” has two entirely different meanings.

This often leads to confusion because people use the exact same words “legal advice” to refer to entirely different things.

The Meaning of “Legal Advice” for Lawyers and the Legal System: Legal Strategy

For divorce lawyers who litigate, “legal advice” is a technical term with a very narrow, special meaning. It refers only to the advice given by a licensed lawyer to a client with whom they have established an attorney-client relationship. It involves an attorney using expert legal knowledge or education to give strategic advice to a client that the client can use to his/her advantage, e.g., to avoid conviction on a criminal charge or to prevail in a contested divorce case.

This narrow, legal definition of “legal advice” is similar to the commonsense notion of legal strategy. When you hire an attorney to represent you, you pay them a lot of money and then they formulate and share with you a legal strategy, thereby giving you legal advice.

From this perspective, divorce mediators do not give legal advice. The ways mediators work, by definition, does not put them into a position where they even could give legal advice.

Mediators are working with a couple as a neutral third party.  They do not enter into an attorney-client relationship with one spouse and offer them legal strategies to gain a strategic advantage over the other spouse. This is what lawyers representing clients do; it is not what mediators working for couples do.

The Meaning of “Legal Advice” for Non-Lawyers: Legal Information

In everyday usage, non-lawyers (who make up 99.99% of the population!) use the term “legal advice” to mean  “legal information.”

Divorce mediators can and should give legal information to their clients! Such information might include:

• how to calculate child support,
• what county a divorce should be filed in,
• whether the state is a “community property” state,
• at what age children are considered emancipated,
• whether alimony is presumptive in a state,
• what issues need to be addressed in a separation agreement (e.g. parenting plan and division of assets),
• how long it takes to get divorced, etc.

Without this information, a couple do not know what issues need to be understood, discussed, and addressed in order to make the decisions required for a legal divorce. From this perspective, divorce mediation lawyers–while remaining neutral–should give abundant “legal information.”

If your divorce attorney mediator declines to give you “legal information,” claiming that they cannot give you “legal advice,” you should find a new mediator.

Posted by University of Massachusetts Professor Benjamin Bailey, PhD

How to Choose a Divorce Mediator in Massachusetts

Your goal is to choose a divorce attorney mediator who excels at the three things a mediator does:

1. The mediator manages interpersonal relations and conflict;
2. The attorney mediator communicates legal parameters and processes so clients can understand the issues they must address for their families and future; and
3. The mediator educates clients on financial issues so they can make informed decisions that will be a basis of the eventual court ordered divorce decree.

How to Find the Best Boston Divorce Mediator: Interpersonal Skills and Empathy

The best Boston divorce mediators exhibit empathy and compassion and can manage conflictual interaction, acknowledging painful emotions. At the same time, the mediator helps a couple move forward, step-by-step with the practical, concrete decisions that are the basis of a separation agreement. In other words, the mediator needs excellent interpersonal and communication skills.

The best way to judge the empathy and your fit with a mediator is to have a brief, no-cost (Zoom) interaction with them. You and your spouse must do this together, so neither of you feels like the mediator “belongs to” the other spouse. If you and your spouse do not feel comfortable with the mediator, or the mediator does not readily share the ways they work with couples or other legal information that you are looking for, the mediator is probably not a good fit.

Choosing the Best Divorce Mediator Near Me in Massachusetts: Legal Knowledge

A divorce mediation lawyer is a broker between the legal system, with its archaic traditions and language, and normal people who simply want a) what is best for their children, b) fair financial outcomes, and c) a predictable and secure path forward to their post-divorce lives.

The mediator uses their knowledge of the law to gently guide the conversation in a way that puts clients’ needs first. An expert attorney mediator writes the separation agreement in a way that meets legal standards and is clearly understandable to both you and the judge. Finally, this family law expertise allows the mediator to advocate with the court for you and your decisions if a court clerk, for example, mistakenly rejects your court documents or asks for clarifications.

Even before you meet with the mediator, study their website. Do they readily share useful, user-friendly information and guidelines about child support or division of property or how uncontested divorce works?

When you call their office, do they answer your questions about divorce in ways that make sense to you and seem doable? Or do they communicate in a way that makes the legal parameters and process seem incomprehensible to a normal person?

Lawyers have traditionally presented the legal world as a mysterious one that you cannot understand. This empowers lawyers, but not you. Uncontested divorce can be clearly understood by the couples getting divorced, so your divorce mediator’s website should present all of this information to you clearly.

Choosing a Massachusetts Divorce Mediator: Financial Expertise and Client Education

A good mediator understands and can explain the financial dimensions of divorce, giving spouses a clear picture of their financial situation and the implications of different financial choices going forward. MA separation agreements have sections that focus on children and parenting, but otherwise focus overwhelmingly on financial issues and decisions. Divorce mediation is, in large part, financial mediation.

Your mediator should be able to display to you, in easily-understood numbers and charts:

1. your total assets and debts, and
2. the exact numbers and implications of any choices you make about support payments and division of property.

They should be able to display to you, in black and white numbers in real-time, the financial consequences of each scenario you discuss, e.g., “What if I kept the house, he kept his pension, and I kept the charge card debt?”

The mediator’s ability to present a financial overview and make clear the implications of each financial choice made by the couple is critical to creating a level playing field for making decisions about money. You cannot afford to use a relatively facilitative, passive divorce mediator who does not have financial expertise and experience or the skills to educate you about divorce finances. 

It is not uncommon for a relatively dominant spouse in mediation to insist, “You’re taking everything and leaving me nothing.” It is much more difficult for that dominant spouse to persist in that claim if the couple and mediator are gazing at a spreadsheet that shows the division of assets to be exactly equal or even favorable to the dominant spouse who is claiming they are getting nothing.

Such clearly displayed financial facts can also encourage a less assertive or less financially savvy spouse to advocate for themselves. Even if such a spouse is not good with numbers or finance, he or she can see that getting 45% of total marital assets while their spouse is getting 55% is not equitable.

Evaluating a Divorce Mediator’s Financial Expertise

Does the attorney mediator give useful financial information on their website? Do they explain division of marital property in ways that you can understand?

Do they have user-friendly calculators for child support, alimony, and the new combined support, Cavanagh calculations?

Do they show a clear understanding of pensions and retirement accounts and how they can be divided in divorce? Do they do QDROs for 401k and defined benefit plans themselves (which shows that they understand them deeply)?

When you call their office, do you get answers to your basic financial questions? If you ask how to divide a house that one of you owned before marriage, do they lay out in clear terms the ways divorcing couples can divide the value of such a house in a fair and equitable way?

If the mediator cannot communicate about the financial aspects of divorce in ways that make sense to you, you should choose a different mediator.

Pros and Cons of Divorce Mediation in Massachusetts

Many blog posts by divorce mediators list the benefits of divorce mediation, but this page also lists the most important cons. The single biggest potential risk of divorce mediation is that a dominating spouse will negotiate an agreement that unfairly favors him or her. This post explains how to avoid this negative outcome by hiring an active (“evaluative”) expert divorce mediator who can maintain a level playing field when there is a power imbalance between spouses.

The Pros of Divorce Mediation Are Numerous:

• It is much less expensive than hiring lawyers and litigating, and it is much less expensive than hiring two litigating lawyers to attempt to negotiate an uncontested divorce outside of court.¹

• It is much faster than using the courts for a contested divorce.²

• It empowers you to be creative and make decisions tailored to you and your family. A good family law mediator gives you the tools to customize your separation agreement according to your family’s unique priorities and needs.³

• In contested cases, a judge does not have time to understand your situation or customize the divorce agreement in ways that work for both of you. They must keep cases moving. The judge will simply impose court orders about how you take care of your children, what happens to your property, and how much, if any, support will be paid.⁴

• It is less adversarial than the courts, which are set up as a competitive contest. Even the way cases are named, e.g., “Plaintiff/Defendant” or “Jones vs. Jones”, suggests a competition with winners and losers.⁵

• If you have children, mediation gives you practice in discussing and coming to agreement on the many practical issues that you will continue to face as your children grow and you co-parent after divorce.⁶

• It is more private than a contested case, where your finances and personal business are publicly discussed in court.⁷

• In a contested case, you will not know what is going on in court. You and your spouse understand your children’s needs, the value of your house, what belongings each of you wants to keep, and the importance of keeping health insurance. Unfortunately, once a case is on a contested track, none of this practical knowledge matters. Court motions, proceedings, and legal rules of evidence take over, and you will have great difficulty understanding it.⁸

Cons of Divorce Mediation in Massachusetts

There is one small disadvantage and two potentially major disadvantages to divorce mediation:

• Cost Barrier: The small disadvantage is that hiring a divorce attorney mediator costs more money than doing the process yourself. Unfortunately, Massachusetts family courts have made the divorce process difficult to do yourself. The required court documents are poorly designed and confusing, making it very difficult to know what they are asking for, why they are asking for it, and what information goes where. Courts regularly reject DIY divorce filings over minor technicalities and don’t tell people how to fix them. Because court clerks are so afraid of giving “legal advice” (even though they are only giving “legal information”) they write messages such as, “We cannot give you legal advice. You should seek legal counsel” when they reject your filing.⁹

• Risk of Concealed Financial Information: The first potential major disadvantage of divorce mediation is that a dishonest spouse can more easily hide assets or financial information from the other spouse than they can in a contested case.

  Contested cases often begin with “discovery”, in which each spouse’s attorney requests 3–5 years of paystubs, credit card statements, bank statements, tax documents, business records, investment statements, property appraisals, insurance payouts, and records of debts, liens, and mortgages. This is a very long, inefficient, and expensive process. It does not guarantee that hidden assets will be found or that a complete financial picture will emerge, but it can make it more likely.¹⁰
  
  A family law mediator does not impose “discovery” on a couple, but the mediator can support a spouse’s request for particular disclosures. If a spouse in mediation requests to see financial statements or records from the other spouse, the mediator will support this request. The mediation lawyer, however, will not initiate the discovery process.

  The honest spouse has some legal protection because the Financial Statements that are submitted to court are signed under penalty of perjury. If the financial statements are eventually found to be fraudulent, even after the divorce is final, financial aspects of the divorce agreement can be re-opened and litigated.¹¹

• Power Imbalances and Assertiveness Gaps: The second potential disadvantage of divorce mediation is that if you do not have one of the best divorce mediators in Massachusetts, a dominant or more forceful spouse can push a less assertive spouse into an agreement that favors the more forceful spouse.¹² The separation agreement could favor the dominant spouse financially, in terms of parenting plan, or in other details.

  This is possible because mediators cannot advocate for one party or the other. If one spouse tends to be aggressive and insists on always getting their way in the marriage—and the other spouse regularly submits to this—this pattern can carry over into mediation.¹³ The resulting separation agreement can easily favor the more assertive partner.

For such marriages, it is very important to have an active attorney mediator who makes sure the couple understands legal parameters, rights, and standards. It is also important to hire a mediator who regularly and clearly illustrates, in black-and-white numbers, the fairness (or lack thereof) of financial decisions the couple are considering. Even a relatively unassertive spouse may be empowered to speak up for themselves if they can see that their spouse is trying to pay below standard amounts for child support or if the division of assets is not close to 50-50.¹⁴

There are two final layers of protection for a less assertive spouse:

1. Outside Attorney Review: Each spouse is always welcome to consult with an attorney, who advises them on how to maximize their side of the equation in divorce. A person who feels like their spouse dominated them in their marriage can consult with an attorney after the mediator prepares the financial statements and an initial draft of the separation agreement. The consulting attorney can review the initial draft and frankly advise the less assertive spouse if the agreement seems fair and equitable. Such a consulting attorney can suggest ways a less assertive spouse could benefit from aggressive representation by an attorney in a contested case.¹⁵

2. Judicial Oversight: The second and final layer of protection against a one-sided agreement is the judge who reviews and signs the separation agreement. It is only when the judge signs the agreement that it becomes a court order and the divorce decree is issued. The judge can and should reject the agreement if the judge determines it is unfair.¹⁶

Finally, if either spouse stands before the judge and says, “I don’t think this agreement is fair and I don’t agree to it,” then the judge does not sign it and the case is dismissed. There is no divorce.

Footnotes

1. Emery, R. E. (2012). Renegotiating Family Relationships: Divorce, Child Custody, and Mediation. Guilford Press.

2. Kelly, J. B. (2004). “Family mediation research: Is there empirical support for the field?” Conflict Resolution Quarterly, 22(1–2), 3–35.

3. Mnookin, R. H., & Kornhauser, L. (1979). “Bargaining in the shadow of the law: The case of divorce.” Yale Law Journal, 88(5), 950–997.

4. Saposnek, D. T. (2004). Mediation and Child Custody: Achieving a Win-Win Custody Agreement. Jossey-Bass.

5. Rifkin, J., Millen, J., & Cobb, S. (1991). “Toward a new discourse for mediation: A critique of neutrality.” Mediation Quarterly, 9(2), 151–164.

6. Emery, R. E. (2011). “Two Homes, One Childhood: A Parenting Plan to Last a Lifetime.” Family Court Review, 49(1), 17–30.

7. Waldman, E. (1997). “Privacy, accountability, and the cooperative divorce.” Buffalo Law Review, 45, 1121.

8. Singer, J. (1994). “The privatization of family law.” Wisconsin Law Review, 1992(6), 1443–1539.

9. Rhode, D. L. (2001). “Access to justice: An agenda for legal education and research.” Journal of Legal Education, 62, 531.

10. Kelly, J. B. (2004). “Family mediation research: Is there empirical support for the field?”

11. Mass. Gen. Laws ch. 208, § 34; and Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984).

12. Grillo, T. (1991). “The mediation alternative: Process dangers for women.” Yale Law Journal, 100(6), 1545–1610.

13. Bryan, P. E. (1992). “Killing us softly: Divorce mediation and the politics of power.” Buffalo Law Review, 40(2), 441–509.

14. Brinig, M. F., & Buckley, F. H. (1998). “Fairness and the division of property upon divorce.” Vanderbilt Law Review, 63(3), 597–626.

15. Mnookin & Kornhauser (1979).

16. Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984); see also Downing v. Downing, 12 Mass. App. Ct. 968 (1981).

Blog post by Benjamin Bailey, PhD, Professor of Communication at the University of Massachusetts

Combined alimony and child support orders and after-tax income in Massachusetts divorce

The purpose of this blog post is to illustrate a series of alimony, child support, and after-tax income scenarios following the steps required by the MA State Judicial Court 2022 Cavanagh v. Cavanagh decision. I show the calculations results for families with incomes ranging from $50,000 to $250,000 per year.

You can calculate your own possible combined child support and alimony orders at this unique Cavanagh child support, alimony, and post-tax income calculator.

The Cavanagh decision upended established family court practice in which child support was calculated on the first $400,000 in family income (or the first $250,000 prior to 2021). Before Cavanagh, income that was used to calculate child support could not then be used to calculate alimony. This meant that divorcing couples with children (and less than $400,000 in family income) would have a child support order but no alimony order.

The Cavanagh decision ended the practice of limiting support orders for most families to child support only, and instead makes orders that include both alimony and child support a standard practice.

Cavanagh gave judges a specific set of calculations to consider in making alimony and child support orders. According to the Cavanagh decision, judges must do the following in making orders in contested (1B) cases where there might be child support:

1. Calculate alimony first…..Then calculate child support using the parties’ post-alimony incomes.
2. Calculate child support first. Then calculate alimony…[on family income above $400,000]
3. Compare the base award and tax consequences of the order that would result from the calculations in step (1) with those of the order that would result from the calculations in step (2), above.

After making these calculations, “The judge should then determine which order would be the most equitable for the family before the court, considering the mandatory statutory factors set forth in G. L. c. 208, § 53 (a), and the public policy that children be supported as completely as possible by their parents’ resources, G. L. c. 208, § 28, and determine which order to issue accordingly.”

The Supreme Judicial Court decision means that judges should do two very different calculations and choose the one that is “most equitable for the family.” The decision fails to define what “equitable” might mean or to give any examples of orders that might be more or less equitable.

The Cavanagh decision requires judges to do more work and to defend their decisions if they do not issue orders that include alimony (such orders are always higher than child support alone): “Where the judge chooses to issue an order pursuant to the calculations in step (2) or otherwise that does not include any award of alimony, the judge must articulate why such an order is warranted in light of the statutory factors set forth in § 53 (a).”

This may encourage judges to routinely combine alimony with child support orders. If they do not include alimony in their orders, they must defend their decision in writing and subject themselves to more scrutiny from appeals courts. In other words, the path of least resistance for judges is to make orders that use the calculations from Step 1, which calculates alimony first and then calculates child support based on post-alimony income.

Scenario 1: Alimony and child support calculations with one spouse earning $50k per year and one spouse earning $0k per year

In this scenario, one spouse earns $50,000/year and the other spouse has no earnings. The spouse with no earnings (“$0k”) is the primary caregiver for the couple’s two children.

In the “Step 1”, or “alimony+child support” calculation, the higher earner pays $12,743 to the lower earner. The income of each is adjusted—the higher earner now has $12,743 less money per year and the lower earner has $12,743 more. These newly adjusted incomes are then used to calculate child support.

The higher earner (who has 1/3 or less of parenting time), pays the parent doing more childcare $11,284 per year. Finally, the approximate taxes are calculated—the higher income parent pays $10,216, while the lower earner gets $220 tax credit. Taxes are on gross income only. Alimony (since 2019) and child support play no role in taxes. The payor of alimony and child support does not receive any deduction for them, and the recipient of child support or alimony pays no taxes on the money received.

This alimony+child support calculation results in an approximate after-tax income of $15,728 for the higher earner and $24,247 for the lower earner, who has primary childcare responsibilities for two minor children.

In the “Step 2”, or “child-support-only”, calculation, only child support is paid, resulting in a payment of $15,236 to the parent who has the child 2/3 or more of the time. Taxes remain the same as in the alimony+child support calculation. The child-support-only calculation for this family reverses the income situation almost exactly: the higher earner has about $24,519 in after-tax income, while the lower earner, taking care of two children, has only $15,456.

In this scenario, alimony+child support would leave all family members living at or just above the federal poverty guideline levels. Child-support-only would leave the children and their caregiver well below federal poverty guidelines.

The difference for each party between alimony+child support and Child-support-only is about $9,000/year.

Scenario 2: Alimony and child support calculations with one spouse earning $100k per year and one spouse earning $0k per year

In this scenario, one spouse earns $100,000/year and the other spouse has no earnings. As in each of these scenarios, the spouse with lower earnings (“$0k” in this case) is the primary caregiver for the couple’s two children.

In this scenario, the difference between alimony+child support and child-support-only is more substantial. Child-support-only—which represents the way support was awarded up until the Cavanagh decision—gives the higher earner $44,134. This places the higher earner at the low end of middle-class status for Massachusetts. The parent taking care of the children, with $29,392 lives at just $5,000 above the federal poverty line.

Alimony+child support, in contrast, gives more income to the caregiver and children: $47,299. This puts them well above the poverty line ($24,860 for a family of three), but below middle-class status (about $70,000 for a household of 3). The higher earner ($29,392) lives $15,000 above the poverty line, but below middle-class status.

Scenario 3: Alimony and child support calculations with one spouse earning $100k per year and one spouse earning $50k per year

As in Scenario 1, the difference between alimony+child support and child-support-only is only $9,000 for spouses.

In Scenario 2, in contrast, the difference between Steps 1 and 2 was $18,000. This is because Scenario 2 had a bigger difference in incomes, which affects both alimony and taxes. Alimony is calculated as a percentage of the difference between incomes, so a difference of $100,000 gives alimony that is twice as large as when the difference in incomes is only $50,000. In addition, income tax is progressive, so the $100k earner pays MORE than twice as much in taxes as the $50k earner.

In this example, alimony+child support puts the caregiver and children into the middle class and the high earner just below middle class. Child-support-only would put the high earner and low earner at the low end, or just below, middle class status.

Scenario 4: Alimony and child support calculations with one spouse earning $200k per year and one spouse earning $50k per year

With this high family income ($250k) and large difference between spouses in earnings ($200k), the difference between alimony+child support and child-support-only grows to $30,000. The high earner pays relatively high alimony, child support, and taxes. This results in approximate take-home income of $63,807 for the high earner despite the relatively high $200,000/year salary.

Both calculations leave both parties with middle class income. The alimony+child support makes the caregiver and children upper middle class, while the child-support-only calculation makes the high earner upper middle class and leaves the caregiver and children more precariously middle class.

Divorce mediation checklist: How to Prepare for Divorce Mediation

1) The first checklist item for preparing for divorce mediation is:

Relax

By choosing divorce mediation instead of fighting in court with lawyers, you have already made a great choice. With mediation, your divorce can be relatively fast and inexpensive, and the process, unlike fighting in court, does not turn you into enemies. If you have children, using mediation will help you reach an agreement that helps you both to co-parent after divorce even as you move forward with your lives.

Another reason to relax is that you—not a court scheduler, a $400/hour divorce attorney, or a judge—control the process. You can schedule meetings when it fits your schedule and file papers with the court when you are ready.

The hallmark of divorce mediation is that you, yourselves, make the decisions that go into the divorce agreement. Nothing is forced on you and there are no legal “gotchas”.

In divorce mediation, the mediator facilitates your discussions and informs you about divorce laws and divorce financial issues, but nothing goes into the divorce agreement unless you both agree to it. This helps couples using divorce mediation to make reasonable decisions despite the emotional turmoil of disentangling from each other.

Are you worried that you are giving up rights by doing mediation? Relax again.

You give up no rights by doing divorce mediation. You are always able to leave mediation and pursue a contested divorce (fighting in court). You are also always welcome to consult with an outside attorney, whom you are paying to promote your specific, individual interests, even as you work with your spouse and a mediator.

A final reason to relax is that nothing is final with your divorce agreement for months. You can revise your agreement if you like, even after you have signed it and sent it to court.

It takes 1-3+ months to be scheduled for the 10-minute court hearing where a judge reviews your court documents and asks you if you have read the agreement, you understand it, and you agree to it. It is only when you and your spouse both say, “I agree”, that the judge signs the paperwork and your divorce has legal force.

2. Choose a Divorce Mediator Who is a Divorce Attorney

In Massachusetts, there is no legal standard or licensing for private divorce mediators. (You yourself could create a website and claim you are a divorce mediator!)

Lawyers, in contrast, must attend law school, pass the bar exam, and maintain a license. Since getting divorced is fundamentally a legal process, you want a lawyer who understands the legal parameters and issues involved in divorce and can translate them into plain English for you so you can make informed decisions. A lawyer is much more likely to be able to write a separation agreement that meets legal requirements for divorce.

Finally, court clerks regularly make mistakes and reject divorce paperwork that is correctly done! Such clerks are more likely to talk to and listen to a licensed attorney than a non-lawyer mediator to clear up such misunderstandings.

3. Understand the divorce mediation process and steps in a nutshell

You meet with the mediator, and she informs you about the issues that have to be addressed and decided when you get divorced. She facilitates your conversations and helps you keep emotions in check as you work through each issue, one at a time.

After the first meeting, Attorney Rueschemeyer prepares all court documents, reflecting your decisions. There are five to seven required documents, depending on whether or not you have minor children. At the second meeting, you finalize decisions, and she goes over them with you, making sure you understand them.

You sign and mail the documents to court.

After one to three months waiting for the first available hearing, you have a 10-minute hearing where the judge asks you if you understand and agree to what is in the separation agreement. The judge then signs the documents.

The divorce agreement has immediate legal force when the judge signs it, but it only becomes “absolute” (meaning you can remarry and that you can file taxes as “single”) 120 days after your hearing date.

4) Understanding the three basic issues that get negotiated

The “big three” issues that need to be figured out for any divorce are:

1. Parenting Plan (if you have children under 18)
2. Division of assets and debts
3. Support (alimony or child support or both)

4a) Parenting Plan

If you have children under age 18, you will decide on a parenting plan that lays out who takes care of the child(ren) when. Your parenting plan can address not just a weekly schedule but also holidays or other special days. Since you are the ones devising the schedule, you can customize this schedule in ways that work for you.

4b) Division of assets and debts

Property acquired and debts incurred during the marriage generally “belong” to both of you, regardless of whose name is on a particular asset or debt. When you get divorced, the ownership of each asset and responsibility for each debt is specified in the divorce agreement, and you then no longer have “marital assets”, i.e., assets that belong to both of you by the fact of being married.

Massachusetts is not a “community property state” where there is a clear, legal distinction between “pre-marital” property and “marital” property, but in practice, it typically operates the same way as in community property states. The law in Massachusetts says that division of property must be “fair and equitable.” At least some judges treat “fair and equitable” to mean 50%-50% of marital property, exactly the same as it would be in a community property state.

4c) Support

Support comes in two basic forms:

1. child support (if you have children under 18, or dependent children under 23), and
2. alimony

Child support is “presumptive” (standard or assumed) in Massachusetts and calculated according to a state formula. The state can take an active role in collecting child support, e.g., by collecting it directly from paychecks before they reach the parent who is paying the child support.

Alimony is not presumptive. It should only be awarded if there is need, but the state does not define what that means. The state gives a messy list of factors that should be considered when determining whether alimony should be awarded, but it does not say how those factors should be evaluated or weighed.

There is a maximum alimony formula which puts limitations on the amount and duration of general term alimony that a judge could award, but the guidelines do not calculate what alimony should be, or whether any alimony at all should be awarded.

Finally, since the August 2022 Cavanagh vs. Cavanagh decision, judges in contested cases (but not mediated ones) must consider awards that combine alimony and child support .

In addition to the “big three”–parenting plan, property division, and support–you will also discuss and come to agreement on:

1. the timing of post-divorce events (moving apart, selling a house, transferring car titles, changing cellphone plans, etc.),
2. health insurance,
3. taxes,
4. (if you have children) paying for college and for life insurance to benefit the children,
5. pets, and
6. other relevant issues.

5) Become familar with the basic financial parameters for child support and alimony

Before you begin mediation, I invite you to experiment with this alimony calculator and this unique combined-child-support-and-alimony calculator. These are the only calculators on the web that take into account taxes and allow you to approximate the take home income as payor or recipient of child support or alimony. These will give you a sense of the range of financial outcomes your decisions about support in mediation could have. This puts you in a much better position to discuss support amounts that work for both of you.

You can get a quick overview of combined alimony and child support orders in this blog post.

6) Consider consulting with an outside attorney

In divorce mediation, you are always welcome to consult with an outside attorney. About 10% of my clients consult with an outside attorney at some point during the divorce process.

Unlike a mediator, who must remain neutral, the consulting attorney can encourage you to advocate for yourself and try to maximize (even if it is not realistic) your side of the equation in the divorce agreement.

If you think you might want to do such a consultation, you can screen attorneys and then set up an appointment for after you have received the initial draft of all the documents. This allows an outside attorney to see the full package–both financial statements and all the details–in order to advise you.

7) Find the original or obtain a certified copy of your marriage certificate

You cannot get divorced in Massachusetts without submitting a marriage certificate with other required court documents. The marriage certificate will not be returned to you. You can order a certified copy of your marriage certificate online from this mass.gov site. 

8) Gather financial information that will go into the required court Financial Statements

The following is a list of documents or financial figures that you will use to provide information for Attorney Rueschemeyer to fill in your Financial Statements.

The Financial Statements, along with the Separation Agreement, are the most important court documents. They lay out your income, assets, and debts, giving a detailed picture of your financial situation. The judge uses these financial statements to evaluate whether the division of assets is “fair and equitable” and whether the alimony/child support figures in your Separation Agreement fall within legal parameters.

In an uncontested case, you do not need to submit any of the financial documents listed below to the court. The judge and court clerks consult the Financial Statements, which contain a summary of information from all these diverse documents. You will sign the Financial Statements under penalty of perjury, attesting that they are complete and the information in them is truthful.

Attorney Rueschemeyer collects all of your financial information in an online questionnaire that you fill out before meeting with her, and then uses custom software to translate your answers into the Financial Statements.  You will need to consult documents or websites listed below in order to provide financial information in Attorney Rueschemeyer’s pre-meeting, online questionnaire.

You should be prepared to share any or all of these documents or website financial information printouts with your spouse if they request it from you.

1. Your most recent paystub (or a typical recent paystub if the most recent one isn’t typical), in order to provide income, taxes, deductions, and withholding.
2. W-2 for the most recent tax year, simply to provide W-2 income from that year.
3. Documents that show any other income, including social security, disability, or retirement
4. If either of you is self-employed or has rental income, be prepared to show your 1040 for the most recent tax year. If you don’t have your 1040 but you are self-employed, share your Schedule C and (if you have rental property income) Schedule E
5. Names and balances of retirement accounts
6. Information about traditional pension(s) (common among teachers and public employees). Attorney Rueschemeyer can quickly calculate the present value of your pension if, before our meeting, you ask your pension administrator this question: “How much would my monthly benefit be at retirement if I a) stopped working now, but b) waited until normal retirement age to start collecting the benefit?”
7. Names and balances for all savings or checking accounts or CDs or brokerage accounts or stocks or bonds.
8. List of debts, including credit card debt. Include the amount owed and the name of the company you owe it to.
9. Amounts owing on car loans
10. Value of cars. You can look up the ‘private party value’ at www.NADA.com or simply agree on an approximate value
11. ‘Fair market value’ and the ‘tax assessed value’ of houses or other real estate that is in either or both of your names. You can find the “tax assessed value” on your town government’s website, and you can use Zillow or an appraiser to determine “Fair Market Value.” (You will probably only use an appraiser if you cannot agree on a Fair Market Value.)
12. The amounts of any mortgages owing on properties you own
13. The approximate number of years that each of you has paid into Social Security (You can get an exact number by creating a “my social security account” at https://www.ssa.gov/myaccount, but it is takes some time and effort to set up passwords for the site).
14. Any prenuptial agreement (less common).
15. Names, amounts, and vesting schedules for any stock options or RSUs (less common)
16. If health insurance from your job covers your spouse, ask your Human Resources person this question: “Can my spouse stay on my health insurance after my divorce if there is a Court Order to keep them on it?” (This question is for information—even if your spouse could stay on it, it does not mean that the divorce agreement you agree to will keep them on it.)
17. Download divorce mediation checklist .pdf here.

Posted by University of Massachusetts Professor Benjamin Bailey, PhD