Under certain circumstances in Massachusetts, an ex-spouse can be required to make regular payments to their former partner. This is best known as alimony, or “maintenance.”
Mediation can be useful for resolving alimony issues, both in the initial divorce, or if one or both parties seek to modify the maintenance obligation. Because the issue of alimony is financial in nature, compromise may be possible, and mediation can avoid expending substantial sums on litigation. Many studies have found that mediation enables the parties to reach a settlement more expeditiously than litigation, save money by avoiding unnecessary litigation costs, and increase compliance with agreements.
Mediation is voluntary, and so the parties must both agree on the reach of the ultimate agreement before it takes effect. This is beneficial, because parties are more likely to comply with alimony obligations if they have agreed to the amounts at issue. Also, the parties may be more likely to believe that an agreement is fair if they enter into it willingly.
With mediation, the parties work with a mediator, who is a neutral third party, to reach a mutually acceptable agreement. The mediator should be knowledgeable about the provisions of Massachusetts divorce law, including those provisions involving the alimony. Under state law, the court may grant either temporary or permanent maintenance for either a husband or a wife, and for the length of time that the court deems just, without any consideration of marital misconduct, after considering all relevant factors. Some of the common considerations when deciding on alimony include:
- Each party’s income and property, including non-marital property assigned to the party seeking maintenance;
- Each party’s needs;
- Each party’s present and future earning capacity;
- Whether a party lost present or future earning capacity due to the time devoted to care giving responsibilities, or having foregone or deferred education, training, employment, or other career opportunities because of the marriage;
- The time needed to enable a party seeking maintenance to acquire education, training, and employment;
- Whether caregiving responsibilities for a child make it appropriate for a parent to stay home and not seek employment;
- The parties’ standard of living during the marriage;
- The length of the marriage;
- The parties’ ages and their physical and emotional health;
- The tax consequences of the parties’ property division;
- The contributions, if any, to the education or career or career potential of the other spouse by the spouse seeking maintenance;
- Any valid agreement of the parties; and
- Any other factor the court expressly finds just and equitable.
Because the terms of the marital settlement agreement, apart from obligations regarding children, are binding on the parties, unless the court determines that the agreement is unconscionable, it is useful to obtain independent legal advice before signing the ultimate agreement. Further, the parties will need to make truthful and full disclosure of their income and assets, as providing false information and failing to disclose assets can be grounds for finding that the marital agreement is unconscionable.
If you are divorcing in Massachusetts and could benefit from mediation, please take a moment to contact our family law firm at the Law Office of Martin Murphy.