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:
- Parenting Plan (if you have children under 18)
- Division of assets and debts
- 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:
- child support (if you have children under 18, or dependent children under 23), and
- 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:
- the timing of post-divorce events (moving apart, selling a house, transferring car titles, changing cellphone plans, etc.),
- health insurance,
- taxes,
- (if you have children) paying for college and for life insurance to benefit the children,
- pets, and
- 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.
- 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.
- W-2 for the most recent tax year, simply to provide W-2 income from that year.
- Documents that show any other income, including social security, disability, or retirement
- 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
- Names and balances of retirement accounts
- 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?”
- Names and balances for all savings or checking accounts or CDs or brokerage accounts or stocks or bonds.
- List of debts, including credit card debt. Include the amount owed and the name of the company you owe it to.
- Amounts owing on car loans
- Value of cars. You can look up the ‘private party value’ at www.NADA.com or simply agree on an approximate value
- ‘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.)
- The amounts of any mortgages owing on properties you own
- 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).
- Any prenuptial agreement (less common).
- Names, amounts, and vesting schedules for any stock options or RSUs (less common)
- 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.)
- Download divorce mediation checklist .pdf here.
