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1A DIVORCE FILING INSTRUCTIONS
A. Papers needed in all 1A Divorces
1. Joint Petition for Divorce – signed by both parties 2. Affidavit of irretrievable Breakdown – Signed by both parties. “Signed this __ day, 2021 under pains and penalties of perjury.” 3. Separation Agreement – signed by both parties with each signature notarized. This must address the issues of the division of marital property, proper provisions for alimony (even if it is not requested by either party), custody, support and maintenance of any minor children. MWI encourages the parties to sign and notarize thee copies of the Separation Agreement. One for each party to keep and one for the court. Parties should bring their copy with them when they attend court for the 1A hearing. 4. Certified Copy of Marriage Certificate - From the town/city where married. 5. Financial Statements – Each party must file a statement and all lines must be filled out completely. Even if there are no children, this form must be completed by both parties. 6. R-408 Statistical Form 7. Request for Assignment Form 8. Filing Fee of $215.00 – Payable by Money Order or Bank Check. Personal Checks and Cash will not be accepted.
B. Additional Requirements in 1A Divorces with Minor Children (under 18 years of age)
9. Affidavit Disclosing Care and Custody of a Child 10. Child Support Guidelines Worksheet(s) 11. Parent Education Certificate
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What Clients Can Expect After Filing
Once you file all your papers with the Court, these papers must be processed. Processing your petition and other papers means that your case needs to be indexed, assigned a docket number, file stamped, docketed into the official court docket, and money needs to be documented and forwarded into the State's Account.
The request for assignment then goes to the Trial Department to be scheduled for a hearing. All papers above MUST be filed in order for the Trial Department to schedule a hearing. If any paper is not filed, including the Parent Education Certificate, your request for assignment will be returned to you and no hearing will be scheduled. If all papers have been filed, you should receive a hearing notice in the mail stating your Uncontested Trial date.
The Notice of Uncontested Trial will tell you when your court date will be. It generally takes approximately 2 to 4 weeks for a Court Date, provided all papers and certificates are received by the Court. If you do not receive your Notice for a court date within 2 weeks after you file, and you have filed all the appropriate papers, including the Parent Education Certificates, you should contact the court.
Thirty days after the Judge approves the separation agreement, a Judgment of Divorce Nisi will issue. The divorce will become final ninety days after the issuance of the decree nisi. A Certificate of Divorce Absolute can be obtained from the Court on the day after the divorce becomes final for a fee of $20.00. The Certificate of Divorce Absolute can be requested by filling out the “Request for Copies” form and forwarding it to the Court with your bank check or money order of $20.00.
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PRACTICE XXXIII. STANDARDS FOR COMPUTER GENERATED FORMS
Preamble: This Uniform Practice governs the use of computer-generated forms by counsel and parties.
Definition: For the purposes of this Uniform Practice XXXIII, the “official form” shall be defined as either: (i) the paper form promulgated and distributed by the Administrative Office of the Probate and Family Court or (ii) the electronic form most recently posted on the Massachusetts Judiciary web site, www.mass.gov/courts and approved by the Administrative Office of the Probate and Family Court.
I. Use. The use of computer-generated forms is hereby permitted, except where the Court blank (“official form”) is a multi-part form, such as the G.L. c. 209A Complaint For Protection From Abuse form.
II. Specifications. A. Paper. 8 ½ x 11 inch, acid free paper shall be used for all computer-generated forms. Acid free paper is specified to ensure archival quality and permanence.
B. Paper and Ink Color. A computer-generated form shall be printed with black ink on white paper except for forms CJ-D 301 S Financial Statement (short form) and CJ-D 301 L Financial Statement (long form), which shall be printed with black ink on pink colored paper, and form CJ-D 304 Child Support Guidelines Worksheet shall be printed with black ink on yellow colored paper.
C. Printing. All computer-generated forms shall be printed with “letter quality” or “near letter quality” output. “Draft” quality output is not acceptable.
III. Consequences of Failing to Follow These Standards. The Register of Probate may reject any form that fails to comply with these standards. In the event that a Register deems a submitted form to be outside these standards, such determination may be reviewed by the Chief Justice of the Probate and Family Court at the request of the submitting counsel or party. It is the responsibility of the submitting party to ensure that the form adheres to the above standards. If the form is rejected, the submitting party shall forfeit the filing fee. The submitting party’s attorney shall not be allowed to pass this cost on to his/her client, but shall bear the financial burden personally. Accordingly, the submitting party’s attorney shall either reimburse the client for the forfeited fee or the attorney shall personally pay the filing fee when he/she refiles the form.
Adopted effective January 1, 1992. Amended effective January 1, 2009.
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Reporter’s Notes – December, 2008
The December 2008 amendment to Uniform Practice XXXIII requires that form CJ-D 304 Child Support Guidelines Worksheet be printed with black ink on light-blue colored paper. The change was necessitated by the amendments to the Child Support Guidelines effective January 1, 2009.
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Commonwealth of Massachusetts The Trial Court Probate and Family Court Department
STANDING ORDER 4-08 PARENT EDUCATION PROGRAM ATTENDANCE
This court finds that the interests of the minor children of parties appearing before it would be well served by educating their parents about children’s emotional needs and the effects of divorce on child behavior and development.
IT IS HEREBY ORDERED THAT:
1. All parties to a divorce action in which there are minor children, are ordered to attend and participate in an approved Parent Education Program (hereinafter, program) except as herein provided. This requirement applies to divorces brought under Ch. 208 sec. 1 (fault divorces); and Ch. 208 secs. 1A and 1B (irretrievable breakdown) and as ordered by a judge of this court in an action to establish paternity, complaints for modification or contempt or in any case involving visitation, custody, or support of minor children.
2. Attendance at an approved program is mandatory for parties to such actions unless waived by the court. Parties must register with an approved provider within sixty days (60) days of service of the original complaint upon the original defendant and attend the next available session.
3. No Pre-trial Conference or Trial will be held by the court until the court receives a certificate of attendance from an approved program for each party, or waives the requirement. An uncontested divorce hearing may be scheduled pending attendance if the parties file confirmations of registration with the court and so long as both parties complete the program prior to the hearing. A Pre-Trial Conference in a contested case may be similarly scheduled so long as the parties complete the program prior to the Pre-Trial Conference.
4. The court may waive the attendance requirement upon motion, with notice, for one or both parties. Waivers will only be granted upon a demonstrable showing of chronic and severe violence which negates safe parental communication; language barriers; institutionalization or other unavailability of a party; failure of the other party to complete a program; unavailability of an approved program in the county in which the original divorce brought under Ch. 208 sec. 1 and Ch. 208 secs. 1A and 1B was filed; or where justice otherwise indicates.
5. Sanctions for failure to register with an approved program within sixty (60) days of service of the original complaint upon the original defendant may be imposed by the court.
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6. The parties must attend programs approved by the Chief Justice of the Probate and Family Court. Attendance at an approved program, wherever held within the Commonwealth, is permissible. Programs which are not approved by the Chief Justice will not satisfy the attendance requirement. Program vendors will ensure that parties to an action do not attend the same session of any program. Lists of approved programs shall be available at all Registries of Probate and at: www.mass.gov/courts/court-info/trial-court/pfc/pfc-parent-education-providers.html
7. A pamphlet entitled Parent Education Programs: Understanding the Effect of Divorce on Children, which lists the approved program providers shall be given to the plaintiff or his/her attorney upon the filing of a complaint for divorce involving minor children. The plaintiff or his/her attorney shall serve a copy of said pamphlet along with the complaint and summons to the person authorized to make service pursuant to Mass.R.Dom.Rel.P. 4(c).
8. The parties shall each pay $80.00 to the provider in advance of the program to offset the cost of materials and facilitators.
9. A party may pay a reduced fee of $5.00 to the provider if that party has submitted and had allowed an “Affidavit of Indigency and Request for Waiver, Substitution or State Payment of Fees and Costs.” This form is prescribed by the Chief Justice of the Supreme Judicial Court pursuant to G.L. c. 261, § 27B, promulgated March, 2003 and is available at the Registry of the Probate and Family Court. The party must submit a copy of this form to the provider when registering for a program at a reduced fee of $5.00.
10. Nothing herein shall be construed to limit the authority of any Probate and Family Court justice to order parties to attend an approved program in any case involving visitation, custody, or support of minor children.
11. All information submitted in compliance with the research component of the program shall be the work product of the Probate and Family Court Administrative Office. The material is for research purposes only and shall not be discoverable.
April 7, 2008 //PMC Date Paula M. Carey Chief Justice
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Mandatory Self Disclosure Massachusetts Supplemental Probate Court Rule 410 effective 5/1/2009
(a) Initial Disclosures.
(1) Except as otherwise agreed by the parties or ordered by the court, each party to a divorce action, each party to a complaint for separate support, and each parent who is a party to an action under Chapter 209C that includes a claim for child support where paternity has already been adjudicated or where the parents have completed a notarized voluntary acknowledgment of paternity shall deliver to the other party or parties within 45 days from the date of service of the summons the following documents:
(a) The parties' federal and state income tax returns and schedules for the past three (3) years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for tax returns, including but not limited to W-2's, 1099's 1098's, K-1, Schedule C and Schedule E.
(b) The four (4) most recent pay stubs from each employer for whom the party worked.
(c) Documentation regarding the cost and nature of available health insurance coverage.
(2) Except as otherwise agreed by the parties or ordered by the court, each party to a divorce action and each party to a complaint for separate support shall also deliver to the other party within 45 days from the date of service of the summons the following documents:
(a) Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).
(b) Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401financial statement.
(c) Copies of any loan or mortgage applications made, prepared or submitted: by either party within the last three (3) years prior to the filing of the complaint.
(d) Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint.
(b) Additional Disclosures.
(1) Except as otherwise agreed by the parties or ordered by the court, each party to an action under Chapter 209C that includes a claim for child support where paternity has already been
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adjudicated or where the parents have completed a notarized voluntary acknowledgment of paternity may serve on a parent who is a party to the action a separate written request entitled "Request for Additional Rule 410 Documents," and the parent served shall, within 45 days from the date of service of the request, deliver to the other party or parties the documents set out in (a)(2)(a)-(d)above.
(2) When a request for child support is first added to an action under Chapter 209C by counterclaim or by amendment of the complaint, a party may serve on a parent who is a party to the action a separate written request entitled "Request for Rule 410 Documents," and the parent served shall, within 45 days from the date of service of the request, deliver to the other party or parties the documents set out in (a)(J)(a)-(c) above.
(3) The parties shall supplement all disclosures as material changes occur during the progress of the case. No party required to deliver documents under this Rule shall be permitted, to file any discovery motions prior to making the initial disclosure as described herein, and no party to a divorce or separate support action shall be permitted to file any discovery motions prior to making both the initial and the additional disclosures as described herein.
(c) Unavailability of Documents.
In the event that either party does not have any of the documents required pursuant to this Rule or has not been able to obtain them in a timely fashion, he or she shall state in writing, under the penalties of perjury, the specific documents which are not available, the reasons the documents are not available, and what efforts have been made to obtain the documents. As more information becomes available there is a continuing duty to supplement.
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PRINCIPLES OF MEDIATION
INFORMED CONSENT affirms the parties' right to information about the mediation process, their legal rights and legal and social service options before consenting to participate in mediation or to the terms of any agreement reached in mediation.
SELF-DETERMINATION recognizes that parties to a dispute have the ability and right to define their issues, needs and solutions and to determine the outcome of the process without advice or suggestions from staff or mediators. The parties have the final say as to the terms of any agreement reached in mediation.
IMPARTIALITY/NEUTRALITY affirms the parties' right to a process that serves all parties fairly and equally and to mediators who refrain from perceived or actual bias or favoritism, either by word or deed.
CONFIDENTIALITY guarantees that all information received from the parties will be kept within the Program, freeing parties to explore the issues and potential solutions. Any exceptions to this guarantee shall be made clear to the parties prior to their consent to participate in mediation.
VOLUNTARINESS acknowledges the parties' right to freely enter both the mediation process and any agreement reached in that process. The parties have a right to withdraw from mediation at any time. Mediators can also withdraw from the process, if necessary.
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A Style Index for Mediators by Jeffrey Krivis and Barbara McAdoo
Prof. Leonard L. Riskin of the University of Missouri-Columbia School of Law has written extensively about mediators and the mediation field. Most recently his work has focused on developing ways to characterize the many different styles of mediators.
In 1994, Riskin explained in Alternatives the ideas used to develop this article's Mediator Classification Index. [See Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives 111 (September 1994). Riskin elaborated on his classification system in Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harvard Negotiation L. Rev. 7 (1996).] His theory on mediator style focuses on (1) how mediators view their role, as "evaluative" or as "facilitative," and (2) how mediators define the problem, "narrow" or "broad." The result is a four-quadrant grid keyed to these two style focuses and containing areas pertaining to mediator styles: Evaluative Narrow, Evaluative Broad, Facilitative Narrow, and Facilitative Broad.
Based on Riskin's work, we have developed the self-scoring MCI. It is designed to assist mediators in understanding the particular approach or style that they tend to use during the mediation process.
Understanding style is crucial to improving mediator performance. It allows a mediator to select from a spectrum of techniques that might be available depending on the nature of the issues presented. It also makes it simple for the mediator to explain to the disputants why a particular approach might be used in resolving the dispute.
Although the MCI is still a work-in-progress and is not a standardized testing instrument, many are finding it to be a useful tool to create an awareness of the stylistic options available to mediators.
In developing the MCI, we first used expert panels in Minnesota and California to analyze the content validity of questions below. For example, did the questions measure what they were supposed to measure relative to factors used by Riskin in his original grid? After revisions, a 48- item MCI was made widely available and used throughout the country by hundreds of mediation trainees. Using a statistical package on a sample of 224 completed instruments, the scales were "purified" and reduced. Finally, after analyzing written and verbal feedback received from mediation trainers and trainees, the MCI was revised to its current 26-item format. To continue the instrument's development, we invite additional feedback from Alternatives' readers.
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Explaining the Quadrants
The differences between the types of mediators on the grid are significant. According to Prof. Riskin, "the principal strategy of the Evaluative-Narrow mediator is to help the parties understand the strengths and weaknesses of their positions and the likely outcome at trial. To accomplish this, the Evaluative-Narrow mediator typically will first carefully study relevant documents, such as pleadings, depositions, reports and mediation briefs. Then, in the mediation, she employs evaluative techniques … which are listed from most to least evaluative."
The Facilitative-Narrow mediator "plans to help the participants become realistic about their litigation situations. But he employs different techniques. He does not use his own assessments, predictions or proposals. Nor does he apply pressure. Moreover, he probably will not request or study relevant documents, such as pleadings, depositions, reports or mediation briefs. Instead, because he believes that the burden of decision should rest with the parties, the Facilitative-Narrow Mediator might ask questions—generally in private caucus—to help the participants understand both sides' legal positions and the consequences of non-settlement."
The Evaluative-Broad mediator "helps the parties understand their circumstances and options. However, she has a different notion of what this requires. So she emphasizes the parties' interests over their positions and proposes solutions designed to accommodate these interests. In addition, because the Evaluative-Broad Mediator constructs the agreement, she emphasizes her own understanding of the circumstances at least as much as the parties'."
The Evaluative-Broad mediator "also provides predictions, assessments and recommendations. But she emphasizes options that address underlying interests, rather than those that propose only compromise on narrow issues."
The Facilitative-Broad mediator "seeks to help the parties define, understand and resolve the problems they wish to address. She encourages them to consider underlying interests rather than positions and helps them generate and assess proposals designed to accommodate those interests."
After taking the test below, the box at the end explains the scoring method, which will place you on the grid. Where you are on the grid provides a snapshot of your natural tendencies as a mediator. It does not necessarily limit your ability to move around the grid by using different strategies and techniques depending on the circumstances of the case.
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Instructions
Review each statement below from the perspective that you are a mediator, and indicate the extent to which you agree or disagree by checking the appropriate box and recording the score. When you are finished, follow the accompanying Self-Scoring Instructions.
MCI'S Problem Definition
This section of the survey concerns the goals of a mediation. The statements are designed to measure the scope of the problem(s) that the mediation seeks to address or resolve.
1. I encourage the parties to focus on resolving the specific, legal problems.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
2. I prefer to look beyond the legal issues in defining the problem to be resolved.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
3. I am inclined to consider the parties' interests more important than the legal issues in defining the problems to be resolved at the mediation.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
4. The focus of the mediation session is on legally relevant issues.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
5. In learning about the issues of the case, it is important to understand the legal posture of the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
6. I urge the parties to compromise on narrow issues.
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Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
7. I tend to decide how I will approach a case based on the legal documents, technical reports or legal briefs.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
8. Even when the lawyer is present at a mediation, I ask the client to discuss the personal impact of the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
9. The interests of the parties are more important to me than settling the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
10. The parties' perception of the conflict is not as important to me as the actual evidence of the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
11. I view the mediation as an opportunity to help the parties understand each others' perception of the dispute.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
12. My role is to help parties understand and reach settlement on the issues set forth in the legal documents.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
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13. Generally, parties are more capable of understanding their situations better than either lawyers or mediators.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
MCI'S Role of the Mediator
This section of the survey concerns the mediator's activities. It measures the strategies and techniques that the mediator employs in attempting to address or resolve the problems that are the subject matter of the mediation.
14. I provide parties with direction as to the appropriate grounds for settlement (e.g., law, industry practice or technology).
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
15. To help parties negotiate realistically, I find it helpful to give an advisory opinion about the likely outcome of a case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
16. My principal strategy is to help parties understand the strengths and weaknesses of their legal positions.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
17. I use the parties' relevant documents, pleadings, reports and legal briefs to help them look realistically at their case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
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18. The principal technique I use is to encourage the parties to explore the likely outcome at trial.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
19. A principal strategy I use is to suggest a particular settlement proposal or range to the parties.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
20. I use private caucuses early to help the parties understand the weaknesses of their case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
21. I do not have to understand the legal posture of the case to serve as the mediator.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
22. I focus on the process as opposed to the outcome of a mediation.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
23. I prefer joint sessions over private caucuses.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
24. Developing options for settlement is the responsibility of the parties, not the mediator.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
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25. I must have expertise in the subject matter of the dispute.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
26. I do not consider it my responsibility to protect legal rights and responsibilities of the parties.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
Self-Scoring Instructions How To Determine Your Personal Mediator Classification:
1. Add together all of your Problem Definition scores.
2. Divide that total number by 13. This is your mean Problem Definition score.
3. Add together all of your Role of Mediator scores.
4. Divide that total number by 13. This is your mean Role of Mediator score.
5. Go to the Mediator Classification Index (MCI) below.
6. On the Problem Definition axis (the bottom horizontal axis) locate the point that corresponds to your mean Problem Definition score. Draw a vertical line from that point all the way to the top of the Index.
7. On the Role of Mediator axis (the left vertical axis) locate the point that corresponds to your mean Role of Mediator score. Draw a horizontal line from that point all the way across the MCI.
8. The point at which the two lines intersect will be in the area of the MCI that indicates your personal mediator orientation.
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Krivis is a mediator and arbitrator in private practice in Los Angeles. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine University School of Law in Malibu, Calif., and is past-president of the Southern California Mediation Association. He maintains an Internet site at www.firstmediation.com. His E-mail address is [email protected]. McAdoo, a member of the CPR Commission on Ethics and Standards of Dispute Resolution Practice, is a professor at Hamline University School of Law in St. Paul, Minn., and the director of the Hamline Dispute Resolution Institute. Her E-mail address is [email protected].
The CPR Institute for Dispute Resolution is a New York-based nonprofit initiative of 500 general counsel of major corporations, law firms and legal academics in support of private alternatives to the high costs of litigation. Organized in 1979, CPR develops new methods to resolve business and public disputes by alternative dispute resolution.
DISCLAIMER: This web page was developed by the Consortium for Appropriate Dispute Resolution (CADRE), a project of Direction Service, Inc., Eugene, Oregon, pursuant to Grant No. 326D980002 with the U.S. Department of Education, Office of Special Education and Rehabilitative Services. The materials on this page were developed by others and the opinions expressed therein do not necessarily reflect the position or policy of the U.S. Department of Education, and no endorsement by the U.S. Department of Education should be inferred.
http://www.directionservice.org/cadre/krivis2.cfm - used with permission.
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Peeling the Onion: Divorces Within Divorce
Many people experience divorce as a process characterized by dramatic changes. These changes embody a variety of separations, or divorces, within the broad context of legal divorce. Like the layers of an onion, some of these changes are readily visible, while others are deep beneath the surface. Some layers involve substantive issues that must be addressed in the mediation. For example, financial changes forming the layer of economic divorce might involve the division of personal property. Other layers involve issues that the parties may wish to discuss, such as regret embedded in the layer of emotional divorce. The layers of divorce in a divorce onion might include:
a) Social Divorce d) Family Divorce g) Emotional Divorce b) Physical Divorce e) Sexual Divorce h) Parental Divorce c) Legal Divorce f) Economic Divorce i) Companion Divorce
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Legal Reasons / Grounds for Divorce Fault and No Fault Divorces
There are two "no fault'' grounds and seven ''fault'' grounds for divorce in Massachusetts. Most divorces in Massachusetts are filed under "no fault'' grounds.
When you file for divorce, you will need to choose a legal reason for the divorce which fits the facts of your situation. Legal reasons for divorce are called the "grounds for divorce."
"No Fault" Divorces
A "no fault" divorce is a divorce in which the marriage is broken beyond repair but neither party wants to blame the other. The legal term for a "no fault" divorce is an irretrievable breakdown of the marriage." There are two ways to file a divorce based upon an irretrievable breakdown of the marriage. These are often referred to by the section of Massachusetts General Laws Chapter 208 in which they are found. They are as follows:
1A- Irretrievable Breakdown of the Marriage
In this type of divorce both parties participate in the filing of a document called a Joint Petition for Divorce. In order to file for this type of divorce, you must have reached an agreement as to all issues (for example, custody, visitation, child support, alimony, division of property and debts, and health insurance coverage.) This agreement is called a Separation Agreement. When you file the Joint Petition for Divorce, you file your Separation Agreement (which each of you sign before a separate notary) and a document called an Affidavit of Irretrievable Breakdown of the Marriage. An "Affidavit of Irretrievable Breakdown" is a statement made under oath which states the reasons the marriage is irretrievably broken down and states whether or not there is any chance you will reconcile. You should list any efforts you have made at reconciliation in this Affidavit.
There are other documents required to be filed with the Joint Petition for Divorce. These documents will be provided to you in your Joint Petition packet which is available in the Registry Office of the Probate and Family Court Department.
As soon as all of the required documents are filed, the court will schedule a hearing before the judge.
1B- Irretrievable Breakdown of the Marriage
In this type of divorce, one party files a document called a Complaint for Divorce claiming "irretrievable breakdown of the marriage." This type of no fault divorce is used when you do not have an agreement. It may be used if you are unable to reach an agreement as to all issues (for example, custody, visitation, child support, alimony, division of property and debts and health insurance coverage,) or if the other party does not agree that there is an irretrievable
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breakdown of the marriage. There is a six-month waiting period before a final hearing on this type of divorce can be held.
A Separation Agreement and Affidavit are not required at the time of filing the Complaint for Divorce and you will be required to have a summons "served" (which means "delivered") on the other party by a sheriff.
There are other documents which must be filed with the Complaint for Divorce. These documents will be provided to you in your Complaint for Divorce packet which is available at the Registry Office of the Probate and Family Court Department.
"FAULT" GROUNDS FOR DIVORCE
There are seven "fault" grounds for divorce in Massachusetts. They are seldom used. They are as follows:
CRUEL AND ABUSIVE TREATMENT
This is the most common "fault" ground for divorce in Massachusetts. In order to be divorced on this basis, you need to prove to the judge that your spouse did something which caused you harm. This ground for divorce is sometimes used in situations of domestic violence.
UTTER DESERTION CONTINUED FOR ONE YEAR
In order to be divorced on this basis, you need to prove to the judge that your spouse left home voluntarily, that she or he has no intention of returning home and that she or he has not lived with you for a least one year prior to the date the complaint for divorce was filed.
SENTENCE OF CONFINEMENT IN A PENAL INSTITUTION
In order to be divorced on this basis you need to prove that your spouse has been sentenced to prison for life or for five years or more. This ground is based upon the length of the sentence, not the actual time spent in prison.
GROSS AND CONFIRMED HABITS OF INTOXICATION CAUSED BY VOLUNTARY AND EXCESSIVE USE OF INTOXICATING LIQUOR, OPIUM OR OTHER DRUGS
In order to be divorced on this basis you need to prove your spouse has voluntarily and excessively used drugs or alcohol in such a way that is has become a pattern.
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GROSS OR WANTON AND CRUEL REFUSAL OR NEGLECT TO PROVIDE SUITABLE SUPPORT AND MAINTENANCE FOR THE OTHER SPOUSE
In order to be divorced on this basis you need to prove that your spouse has refused or neglected to provide support or maintenance for you and that she or he has the ability to provide said support
ADULTERY
In order to be divorced on this basis you need to show that your spouse had sexual intercourse during the marriage with someone other than you. You will have to prove that sexual intercourse occurred, which makes this a difficult ground on which to obtain a divorce.
IMPOTENCY
This ground is rarely used. In order to be divorced on this basis you need to prove that your spouse is incapable of having sexual intercourse.
Deciding on a basis for your divorce can be very complicated. If you have questions about the grounds for divorce and what you need to prove, you should seek legal advice from an attorney.
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COMMON LEGAL TERMS
Abandonment See Desertion.
Abuse See Cruel and Abusive Treatment.
Abuse Prevention See Restraining Order.
Abuse Prevention Statute Chapter 209A of the Mass. General Laws.
Action; Actionable See Cause of Action, Claim.
Admissible; Admissibility Any testimony, document, or demonstrative material officially considered by the court, i.e., allowed into evidence, generally in compliance with the rules of evidence.
Admissions; Requests for One party to a case can require the other party to admit or deny Admissions in writing and under oath various assertions.
Adultery Sexual intercourse between a married person and a third party. One of seven fault grounds for divorce is Massachusetts, but rarely used.
Affidavit A written statement, voluntarily signed under oath, usually in support of a motion.
Affidavit Disclosing Care or An official form courts require to be filed by the plaintiff in all Custody Proceeding divorces involving minor children of the marriage.
Agreement See Separation Agreement.
Alienation of Affection Any intentional, malicious interference with a marital relationship; not recognized by the Massachusetts courts.
Alimony Spousal support sometimes paid by agreement of the parties or by court order. Alimony Laws in MA were updated and went into effect during March of 2012.
Annulment The court’s judgment that a so-called “marriage” was never legally valid or invalid after the marriage.
Answer to Complaint and A responsive pleading that answers allegations made in the Counterclaim complaint. A counterclaim sets forth the defendant’s allegations
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against the plaintiff, as if the defendant were asking for a divorce in the first instance. The defendant is sometimes called the “plaintiff-in-counterclaim” since he or she makes his or her initial claim in this pleading.
Antenuptial Agreement See Prenuptial Agreement.
Appeal Review of a trial court’s decision and judgment by a higher court. The appeals court can review the trial court’s “findings of fact” and “conclusions of law.” See Decision and Judgment.
Appear; Appearance; File A court filing registering the name of your lawyer, or, if you an Appearance represent yourself, your name as “pro se.”
Arbitration A legally binding, non-judicial procedure held before a neutral third party, the “arbitrator,” who acts as private judge;
Arrearages The deficiency between the amount, if any, paid and the amount required under court order. If payments are made voluntarily on a de facto basis, i.e., not under court order, any reduction in the amount of such payments is not considered an arrearage.
Assented to Motion A motion agreed to in writing by the other party. An “unopposed” motion is simply not opposed by the other party, but not agreed to in writing.
Assignment of Property Same as equitable division of property
Attachment; Motion for A lien on personal or real property created by court order Attachment (formerly known as a writ of attachment) in response to a motion for attachment.
Attorney for the Child(ren) A court-appointed attorney who represents the stated wishes of the child(ren). Unlike a guardian ad litem who acts in the child’s best interest by substituting her own judgment for the child’s, the attorney for the child(ren) must advocate those causes espoused by the child(ren) and generally not substitute his or her own judgment.
Automatic Wage See Wage Assignment. Withholding
Bankrupt; Bankruptcy The inability of a person to pay bills as they become due. Also, a
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person’s legal status in federal bankruptcy court. Alimony and child support are generally not affected, but property divisions, including the marital home may be affected.
BBO See Board of Bar Overseers.
Bench Trial A judicial hearing before a judge without a jury. In Massachusetts, all divorce trials are bench trials.
“Best Interest” of the Child The legal standard or doctrine for making child-related decisions.
Board of Bar Overseers A regulatory board appointed by the Supreme Judicial Court and charged with regulating the legal profession in Massachusetts.
Bomber An old term to describe an unethical divorce lawyer who sleeps with his clients.
Brief A document written in support of a motion.
Burden of Proof The party asserting a claim must prove such claim is true—in civil cases the party must prove the claim by a preponderance of evidence. In criminal cases, proof must be beyond a reasonable doubt.
Cannons of (Legal) Ethics Ethical rules established by the Supreme Judicial Court that regulate the behavior of lawyers. Violations can lead to warnings, fines, suspensions, and even license revocation.
Capias A civil arrest warrant ordering the sheriff or other officer to take a person into custody and deliver him or her to court. This procedure is used when a party refuses to appear in court.
Cause of Action; Claim A lawsuit. To bring an action (lawsuit). Certain wrongful acts are actionable offenses, meaning that such acts are the grounds for a lawsuit, i.e. they create a cause of action.
Chalk A chart or mock-up submitted to the court to demonstrate a point, but not formally introduced as evidence.
Change of Venue See Venue; Change of Venue.
Child Abduction See Parental Kidnapping.
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Child Custody See Custody – Legal and Custody – Physical.
Child Support Court-ordered or voluntary payments from the non-custodial parent to the custodial parent, not tax deductible by the paying parent, nor includeable in the recipient parent’s taxable income. Child Support Guidelines State guidelines requiring the non-custodial parent, under normal circumstances, to pay child support based on a percentage of gross income. Child Support Worksheet A court form to calculate the child support guidelines that is required in all cases involving children.
COBRA (Consolidated Federal legislation that guarantees all persons covered by medical Omnibus Budget insurance, the right, for a monthly fee, to continue coverage even Reconciliation Act) if employment or marital status changes.
Cohabitation Unmarried persons living together as if married.
COLA Cost of living adjustment.
Commencement of Action The official beginning of your case, defined as the time of filing your complaint for divorce.
Common Law A body of law, sometimes referred to as “case law,” developed by judges over many years which establishes how courts interpret statutes and handle matters not specifically covered by statutes.
Common Law Marriage A judicially-recognized marriage (but not recognized in Massachusetts) generally based on cohabitation.
Community Property A system of property division (not used in Massachusetts) which divides equally all property—no matter in whose name it is held— acquired during the term of the marriage, excluding inheritances and gifts in some jurisdictions.
Complaint for Divorce A complaint for divorce initiates the divorce proceeding by identifying the parties; stating the grounds for divorce; stating all claims against the defendant; and requesting the court to grant a divorce, grant custody, divide property, and order support. All complaints must be filed with the Probate and Family Court with a $110 fee.
Conflict of Interest (Rules) Lawyers are prohibited from entering certain relationships in
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which the lawyer, by virtue of his profession, received or appeared to receive confidential information about the opposing party. No lawyer can ever represent both sides in a divorce, even if uncontested.
Consolidation The joining of two related cases.
Constable A private individual who is legally empowered to serve process. Constructive Service of The service of process through alternative means such as Process publication in a newspaper when the defendant resides out of state or whose whereabouts are unknown.
Contempt of Court, Legal action brought when the plaintiff alleges a willful failure to Complaint for obey a court order or judgment.
Contested and In contested divorces, the parties are adversarial, they cannot Uncontested Divorce agree on the terms of divorce, such as alimony, custody, visitation, child support, and division of assets. In uncontested divorces, the parties agree to all matters, and present an executed separation agreement to the court for approval.
Whether a divorce is contested or uncontested should not be confused with whether the divorce is fault or no-fault. The following illustrates the difference:
Contested Fault: grounds and property and/or support are in dispute; trial necessary if not settled No-Fault: property and/or support in dispute; if no agreement is reached, the case goes to trial
Uncontested Fault: unusual since uncontested divorces avoid conflict; insisting on fault destroys the cooperative nature of uncontested matters No-Fault: signed agreement presented to the court for its approval
Contingency Fee In divorce cases, an unethical type of fee agreement providing the lawyer with a percentage of your settlement or judgment.
Co-Respondent A third-party co-defendant in a divorce action accused of committing adultery with the defendant.
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Counsel Fees Pendente “Pendente Lite” means during the litigation. Generally, a motion Lite, Motion for is filed by the wife requesting sufficient funds from the husband, or from the marital estate, to prosecute or defend the divorce action.
Counterclaim See Answer and Counterclaim.
Court The term “court” has three meanings: (1) a physical place, e.g., courtroom, courthouse; (2) a quasi-political entity, e.g., the Probate and Family Court; and (3) the actual judge or justice acting in his or her official capacity.
Court of Appeals The appellate court for divorce matters whose decisions are reviewable by the Supreme Judicial Court. Court Docket The formal court record of all pleadings, orders, and judgments entered into a docket book available for public inspection.
Court Order A written instruction from the court carrying the weight of law, i.e., the knowing violation of which constitutes contempt of court. Courts of Equity See Equity; Courts of Equity.
Coverture The period of time during which a women is married.
Cross-examination Following the direct examination of a witness by a lawyer, cross examination is the follow-up questioning by the opposing lawyer.
Cruel and Abusive Ground for divorce in a fault divorce, wherein the plaintiff must Treatment prove physical or emotional harm to her or himself.
Curtesy See Dower.
Custodial Parent Usually refers to the parent with whom the child(ren) reside(s), i.e., the parent with sole or primary physical custody.
Custody - Legal A legal status or “custodianship” vesting authority to approve all major decisions affecting a minor child. Chapter 208, Sec. 29 defines legal custody as follows:
Sole Legal Custody: one parent shall have the right and responsibility to make decisions regarding the child’s welfare including matters of education, medical care and emotional,
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moral and religious development.
Joint Legal Custody: continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care, emotional, moral and religious development.
Sometimes separation agreements use terms such as joint legal custody, meaning shared legal custody.
Custody - Physical Relates to the physical location of the child. Chapter 208, Sec. 29 defines physical custody as follows:
Sole Physical Custody: a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
Joint Physical Custody: a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.
Such terms as “sole,” “primary,” “shared,” and “joint” are used to describe various parenting and visitation plans.
Decision and Judgment A decision is a judge’s “finding of facts” and “conclusions of law.” The decision forms the factual and legal basis of the court’s judgment.
Decree Absolute See Judgment Absolute and Final Judgment.
Decree Nisi See Judgment Nisi.
De Facto Latin meaning “in fact.” Acting in a certain manner, usually as if complying with what a court might order, without such order being in place. For instance, if one parent is making voluntary child support payments pursuant to the guidelines, he or she is paying de facto guideline support, even though no court has so ordered.
Department of Children The Massachusetts agency responsible for the health and welfare
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and Families of children. Department of Revenue The Massachusetts agency responsible for child support enforcement.
Department of Social Was the Massachusetts agency responsible for the health and Services welfare of children. The name was changed during July of 2008 to the Department of Children and Families
Deposition An oral examination taken under oath before a stenographer, usually at the attorney’s office who requests the deposition. Any person, whether a party to the case or not, can be called to a deposition, provided they have relevant evidence to give. The notice requesting the deposition may also contain a list of documents to be produced at the deposition. See Discovery; Pretrial Discovery.
Deposition Subpoena A subpoena requiring the named-person to attend a deposition.
Desertion One of several grounds for a fault divorce. Massachusetts requires the plaintiff to prove several of the following factors: 1) the defendant left the marital home for over one year; 2) the parties failed to agree to such departure; 3) the party who left failed to pay support; and 4) the reason for the departure was not caused by the plaintiff.
Discovery; Pretrial Discovery is the formal procedure for gathering information Discovery pursuant to rules of court. The primary methods are requests for financial statements under Supp. Rule 401, requests for production of documents, written interrogatories, depositions, and subpoenas to third parties.
Divorce Agreement See Separation Agreement.
Divorce Judgment Absolute See Judgment Absolute.
Divorce Judgment Nisi See Judgment Nisi.
Domicile A person’s “legal” home, i.e., where the person spends most of his time, or intends to return, if currently living elsewhere.
DOR See Department of Revenue.
Dower The wife’s common law right to inherit from her husband.
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DSS The name, “Department of Social Services” is no longer used. See Department of Children and Families.
Emancipation In divorce court, “emancipation” does not necessarily mean “legal majority,” i.e., 18 years old. Depending on the state and the educational status of the child, emancipation may occur between ages 18 and 23.
Equitable Division of Massachusetts is an equitable distribution state meaning that all Property property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division.
In Massachusetts under “Section 34” the judge must consider 15 mandatory factors before making an equitable property division or awarding alimony:
1. length of the marriage 2. conduct of the parties during the marriage 3. age 4. health 5. station in life (life-style) 6. occupation 7. amount of income 8. sources of income 9. vocational skills 10. employability 11. estate 12. liabilities 13. needs of each of the parties 14. opportunity of each for future acquisition of capital assets and income 15. present and future needs of the children of the marriage
The court may also consider the: 16. contribution of each of the parties in the acquisition 17. preservation or maintenance of the property 18. appreciation in value of their respective estates 19. contribution of each of the parties as a homemaker to the family unit. Equity; Courts of Equity Equity is a body of law that concerns itself more with fairness than with the strict, and sometimes harsh, application of common law.
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Ethics; Legal Ethics A code of conduct, also known as the Code of Professional Responsibility, imposed on attorneys. Violations may subject the attorney to disciplinary proceedings and malpractice claims. See Canons of (Legal) Ethics.
Evidence Any testimony, document, or demonstrative material. See Rules of Evidence.
Evidentiary Hearing See Trial; Hearing on the Merits; Evidentiary Hearing.
Exhibit(s) Any evidence attached to a pleading or introduced at trial, for example, a party’s pay stub attached to a motion for temporary support.
Ex Parte: Hearing, Motion, Ex parte means without notice to, or attendance of, the opposing Order party. The motion session of the Probate and Family Court is referred to as the “Ex Parte” Session although both parties are usually present.
Ex Parte Session In Massachusetts, family court motion sessions are referred to as Ex Parte Sessions.
Expert Witness In divorce cases, most experts are called to testify as to the value of the marital home, pensions, and privately-held businesses. In child-related disputes, mental health professionals are often called to testify.
Fair and Reasonable The judicial standard for approving separation agreements.
Family Service Office; Sometimes known as the Probation Department, this office and Family Service Officer its employees, also known as probation officers, assist the court with dispute resolution.
Fault and No-fault Divorces In fault divorces, the complaint for divorce must state grounds for divorce. They include cruel and abusive treatment, adultery, abandonment, and other types of misconduct.
No-fault complaints for divorce merely allege an “irretrievable breakdown” of the marriage. The court must find that the marriage has “irretrievably broken down,” leaving no chance of reconciliation.
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Fee Agreement; Retainer The written contract between you and your lawyer. See Agreement Contingency Fee Agreement and Success Fee Agreement for ethical problems with these types of Fee Agreements. File; Filing Any document submitted to and officially received, i.e., “docketed” by, the court.
Final Judgment See Judgment Absolute.
Financial Statement; Rule Each party must complete, file, and serve a court-furnished 401 Financial Statement financial statement.
Find; Findings After considering the evidence presented, a court or jury interprets the evidence and sets forth what it believes, i.e., finds, are the actual facts. Courts have great latitude in weighing evidence and in believing or disbelieving witnesses. The court’s findings, along with its “conclusions of law,” form the basis for the court’s decision. See Decision and Judgment.
Full Faith and Credit A term found in the United States Constitution (Art IV, Sec. 1) requiring each state to honor the legal judgments of other states.
Garnishment See Wage Assignment.
Grandparent Visitation See Visitation, Grandparent.
Ground(s) for Divorce Certain improper or troublesome behavior that constitutes a “legal reason” for the court to grant a divorce. They are: 1. Adultery 2. Cruel and abusive treatment 3. Utter desertion 4. Long-term incarceration 5. Gross and confirmed habits of intoxication 6. Non-support 7. Impotency 8. Irretrievable breakdown of the marriage (no-fault)
Guardian ad Litem A court-appointed individual who, for the purpose of pending (“G.A.L.”) litigation, puts himself or herself in the shoes of a legally incompetent person such as a minor child. He or she also investigates the matter and files a report with the court.
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Hearing on the Merits See Trial; Hearing on the Merits; Evidentiary Hearing.
Hold Harmless; Hold The contractual assumption of certain liabilities by a party who Harmless Agreement agrees: 1) not to look to the other party for assistance in satisfying such liabilities, and 2) to defend (“indemnify”) the other party against third party claims, if a third party, such as a mortgage lender, sues you.
Investigator-Attorney A court-appointed lawyer who investigates matters pursuant to judicial order and reports his or her findings to the court.
Impeach; Impeachment of Discrediting a witness by proving lies, inconsistencies in stories Testimony told, and untrustworthiness. The witness may be impeached during cross-examination or by the direct testimony or evidence of another witness. See Direct and Cross Examination.
Impoundment of Pleadings You can ask the court, via motion, to impound your papers for good cause, such as certain inflammatory matters might be read by the children.
In Camera Hearing A closed-door hearing in judge’s chambers, usually concerning sensitive child-related issues.
Infant A person who has not reached legal majority, usually 18 years of age. Also, referred to as a “minor,” or unemancipated child.
Injunction; Injunctive Relief A court order prohibiting certain activity. See Temporary Order; Temporary Restraining Order.
Innocent Spouse; Innocent Section 434(c)(1) of the Internal Revenue Code protects an Spouse Rule “innocent spouse” from tax liability if certain conditions are met: 1. A joint return was filed 2. The return contained a “grossly erroneous” error 3. The innocent spouse establishes “lack of knowledge 4. In light of all the “facts and circumstances” it would be “inequitable” to impose the tax on the innocent spouse.
Interlocutory Hearing Any court hearing at which a pretrial order or ruling is requested.
Interrogatories Interrogatories consist of written questions propounded to a person (who must be a party to the case). Answers must be in writing and made under oath pursuant to rules of court. See Discovery; Pretrial Discovery.
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Irretrievable Breakdown The legal ground for no fault divorce, also known as “1-A” divorces because they are granted under Chapter 208, Section 1A of the Massachusetts General Laws. Joint Custody See Custody – Legal and Custody – Physical.
Joint Petition When both parties ask the court to do the same thing, usually to grant a no-fault divorce.
Judgment Absolute The final judgment which automatically follows the judgment nisi waiting period.
Judgment of Divorce The court’s final judgment after expiration of the judgment nisi Absolute period. Upon this date you are legally divorced and can remarry. Generally, the final decree occurs automatically upon termination of the waiting period. Additional court filings and appearances are not required. Judgment Nisi The initial, temporary judgment of divorce. When courts grant divorces, their judgments are not final until the expiration of a statutory “waiting period” known as the nisi period. It begins when the judgment nisi enters and ends upon entry of the “judgment absolute” on the docket.
Jurisdiction The court’s legal authority to hear your case and issue legally enforceable orders and judgments. The Probate and Family Court in the county where you last lived together has jurisdiction over the divorce, unless neither party currently lives in such county.
Legal Custody See Custody – Legal.
Legal Separation Massachusetts courts do not grant legal separations, but all separations are legal in the sense that people have the right to live apart without a court order. See Separate Support for rights of separated parties where neither party files a complaint for divorce.
Legal Services Center An organization located in Jamaica Plain, MA, focusing on providing legal services to moderate- to low-income clients.
Lien; Spousal Lien on See Attachment. Marital Property
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LSC See Legal Services Center.
“Mandatory Factors” (to The factors a court must consider before making a final decision be Considered by the relating to property division and alimony. See Equitable Court) Distribution.
Marital Property In the absence of a prenuptial agreement, all property in which either party has an interest, including property acquired before marriage, inheritances, and property held in only one spouse’s name.
Marital Tort See Tort; Marital Tort; Domestic Tort.
Marriage Certificate The official certification (with raised seal) of your marriage issued by a public entity which you need to file with the court for a divorce.
Mediation An informal, voluntary process allowing parties to work with a neutral third party (the “mediator”) to develop a separation agreement. An agreement developed with a mediator is said to be a “mediated agreement.”
Memorandum of Law A legal document filed along with pleadings or other court papers setting forth your lawyer’s legal research in support of a request to the court.
Memorandum of A divorce term sheet negotiated by parties seeking a no-fault Understanding divorce, usually with the help of mediators, that will be converted into a separation agreement to be filed with the court to get a divorce. See Separation Agreement.
Modification, Complaint The legal, post-divorce procedure to change or modify a for separation agreement, or the court’s earlier decision and judgment.
Motion A written request asking or “moving” the court to grant a temporary order, or rule on a legal matter. MOU See Memorandum of Understanding. Negotiated Settlement; The parties, usually with counsel, develop a separation Negotiated Agreement agreement. These agreements are not mediated; the parties, without any neutral third-party settle their controversy through negotiation.
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Nisi See Judgment Nisi.
No-Fault Divorce See Fault and No-Fault Divorce.
Notice; Legal Notice The procedure for informing a party that a legal action or motion is pending before a court.
Nuptial Of, or pertaining to, marriage.
Order See Court Order.
Palimony Payments similar to alimony made to a former cohabitator (not recognized in Massachusetts).
The right of the state to take charge of the care and custody of Parens patrieae minor children or other legal incompetents when their health or safety so requires.
Parental Kidnapping The act of one parent illegally taking a child.
Pendente Lite Latin for “during the litigation.” See Counsel Fees Pendente Lite, Motion for.
Perjury Knowingly lying under oath.
Physical Custody See Custody – Physical.
Pleadings Includes the complaint (or petition), answer, and counterclaim.
Postnuptial Agreement Same as prenuptial agreement, but entered during the term of the marriage, often revising a prenuptial agreement.
Prejudice; With and The concept that what happens in court or by stipulation of the Without Prejudice parties will affect future proceedings. Generally, temporary orders are said to be without prejudice, which means that the parties have a right to a trial on all matters, including those decided by temporary orders. In contrast, with prejudice means that even at trial the earlier order determines the outcome. If your complaint for divorce is dismissed without prejudice, you may file again. If it is dismissed with prejudice, you may not refile.
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Preliminary Hearing Any court proceeding that occurs prior to trial.
Premarital Assets Assets acquired before marriage. These assets are part of the marital estate in Massachusetts, and are excluded from, and constitute separate property in, community property and some equitable distribution states.
Prenuptial Agreement A written, premarital contract dealing with death and divorce, setting forth the rights and responsibilities of the parties upon occurrence of these events. The agreement must be “fair and reasonable” at the time it is signed and also at the time a party seeks to enforce it.
Pretrial Conference A court-mandated meeting of all parties and counsel with the trial judge.
Pretrial Memorandum See Trial, Pretrial Memorandum.
Pretrial Order See Temporary Order; Temporary Restraining Order (TRO).
Primary Physical Custody See Custody – Physical.
Refers to evidence based on private communications made within Privilege legally recognized “confidential relationships,” such as husband- wife, attorney-client, patient-psychiatrist, and priest-penitent. It also includes the privilege against “self incrimination” which can be asserted by a party accused of adultery since adultery is still a criminal offense in Massachusetts.
Probate and Family Court The Massachusetts trial court with jurisdiction over divorce.
Probation Officer; See Family Service Office. Probation Department
Production of Documents Under a rule of court the plaintiff or defendant is allowed to demand documentary evidence to be produced by the other party. See Discovery; Pretrial Discovery.
Pro Se When a party handles his or her own case, i.e., represents himself or herself, she is said to appear “pro se.”
Proposed Findings and A document prepared by you or your lawyer and submitted to the
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Rulings; Proposed Orders, court setting forth your best case scenario, i.e., how you want the Proposed Judgment judge to find the facts and make “conclusions of law” to decide the case.
QDRO (Qualified Domestic A court order directed to a “plan administrator” or “custodian” Relations Order) allocating retirement benefits between spouses.
Recrimination If the defendant is accused of adultery, “recrimination” is the counterclaim when the plaintiff is accused of adultery, too.
Register of Probate and An elected official charged with the administration of the Probate Family Court and Family Court. The Assistant Registers, who are usually lawyers, act as court clerks.
Rehabilitative Alimony Short-term spousal support designed to help the recipient “get started” with her new life. See Alimony.
Removal (of a Minor Child) The legal proceeding brought by the custodial parent’s complaint to remove (move) the minor child(ren) from Massachusetts.
Request for Admissions See Admissions.
Request for Production of See Production of Documents. Documents
Restraining Order A temporary court order prohibiting a party from certain activities. Issued in response to a motion, restraining orders often are issued to protect marital assets and to protect against domestic violence. In many states, violating a “domestic restraining order” is a criminal offense.
Retainer Agreement See Fee Agreement.
Rules of Domestic The rules that govern court procedure or steps you must follow in Relations Procedure a court case. Rules of Evidence The statutory rules governing testimony, documents, and demonstrative materials.
SA See Separation Agreement.
Sanctions Under the Rules of Domestic Relations Procedure, courts may penalize or sanction a party or counsel for improper behavior, such as making frivolous claims withholding evidence.
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Secretion of Assets The hiding of assets.
Self Incrimination; the right The right of the accused not to admit criminal wrongdoing, against usually adultery in divorce-related cases.
Separate Property Property not considered part of the marital estate, usually in community property states, including property owned prior to the marriage and may include inheritance or gifts received during marriage. In Massachusetts, all property is marital property.
Separate Support A legal procedure brought by complaint for separate support, that allows the plaintiff to seek court orders without filing a complaint for divorce. Often used by people who have religious objections to divorce.
Separation See Legal Separation.
Separation Agreement A legally enforceable, spousal contract settling all matters.
Service; Service of Process The legal process of informing, i.e., “giving notice,” that a complaint or motion is pending.
Settlement Agreement See Separation Agreement.
Shared Legal Custody See Custody.
Sole Legal Custody See Custody.
Sole Physical Custody See Custody.
Special Master A court-appointed individual, usually an attorney, who assists the court as a private judge during certain aspects of the case, e.g., discovery.
Stipulation; Stipulated A written agreement intended to be entered as a court order Agreement upon assented to motion of the parties.
Strike; Motion to Strike Upon motion of a party, a court may remove certain pleadings and evidence from the docket upon finding such material totally irrelevant, scandalous, or without proper notice.
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Subpoena; Subpoena An order, usually of a notary public, issued to a party or non-party Duces Tecum to a case, to attend a legal proceeding such as a trial or deposition. If documents also are requested, the subpoena is called a subpoena duces tecum, Latin for “bring with you.” See also Discovery; Pretrial Discovery.
Success Fee Legal fees added to hourly billings if, in the lawyer’s opinion, he or she deserves a bonus based on his performance. Protest any such billing.
Summons The court’s official notice to the defendant that he or she must respond to the attached complaint. The fee is $1 for an official blank summons.
Supreme Judicial Court The highest court in Massachusetts.
Supervision; Supervised See Visitation. Visitation
Surviving Agreement See Agreement and Modification; Complaint for.
Temporary Alimony See Temporary Support.
Temporary Order, A pretrial order compelling a party to do something, or Temporary Restraining prohibiting him from certain activities. Order (TRO)
Temporary Support A temporary order of support issued while a case is pending.
Tenancy by the Entirety The manner in which jointly owned real estate is usually held by married couples. The surviving spouse, if the parties were married at time of death, becomes the sole owner automatically, regardless of any contradictory terms in the decedent’s will.
Testimony Any statement made under oath.
Tort; Marital Tort; A tort is any wrongful act which creates legal liability against the Domestic Tort defendant or “tortfeaser.” However, Massachusetts does not recognize domestic torts.
Trial; Hearing on the A formal proceeding before a judge who hears testimony under Merits; Evidentiary Hearing the rules of evidence and makes a final decision or judgment relating to the matters presented. All such decisions are with
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prejudice, since they are final adjudications of the matters presented.
Trial Memoranda; Pretrial A “sales” document filed with the court, setting forth each party’s Memoranda theory of the case, what they want, and why they should get it.
Trustee Process A court order to a third party, such as a banker, freezing an account or property.
Uncontested Divorce A divorce in which the parties agree on all matters as set forth in their separation agreement.
Vacate the Marital Home, A request to the court made by motion asking that one party, Motion to usually the husband, be forced to vacate the marital home.
Venue; Change of Venue The location of the court, in contrast to jurisdiction, which determines whether a court has legal authority to hear a case. Venue is where a court, with proper jurisdiction, will hear the case. When a case is transferred to a new location within the same jurisdiction (county or state), the transfer is called a change of venue.
Visitation, Grandparent Grandparents have visitation rights in all 50 states.
Visitation; Supervised Pursuant to stipulation, agreement, or court order, visits of Visitation unemancipated children with their non-custodial parent. Visits are supervised by a responsible adult when the non-custodial parent is accused of child abuse or neglect.
Effective July 15, 2015 the Massachusetts Probate and Family Court moved from the term “visitation” replacing it with “parenting time”.
Wage Assignment A court order to a third party, usually an employer, requiring the employee’s wages to be attached (automatically deducted from a paycheck) and assigned (paid) to another party, usually the wife.
Writ of Attachment See Attachment; Motion for Attachment.
Writ Ne Exeat (Arrest) An arrest warrant granted in emergencies.
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THE COMMONWEALTH OF MASSACHUSETTS MASSACHUSETTS TRIAL COURT EXECUTIVE OFFICE OF THE TRIAL COURT BOSTON, MASSACHUSETTS
CHILD SUPPORT GUIDELINES
The attached CHILD SUPPORT GUIDELINES supersede any previous Guidelines and are effective September 15, 2017, as amended June 15, 2018.
______Paula M. Carey Chief Justice of the Trial Court
May 17, 2018 Date 70
Preamble These child support guidelines shall take effect on September 15, 2017, as amended on June 15, 2018, and shall be applied to all child support orders and judgments entered as of the amended date. In recognition of the priority of the interests of the children of the Commonwealth, these guidelines are formulated to be used by all of the justices of the Trial Court. There shall be a rebuttable presumption that these guidelines apply in all cases establishing or modifying a child support order, regardless of whether the parents of the child are married or unmarried, the order is temporary or final, or the Court is deciding whether to approve an agreement for child support. There shall also be a rebuttable presumption that the amount of the child support order calculated under these guidelines is the appropriate amount of child support to be ordered. These guidelines are based on various considerations, including, but not limited to, each parent’s earnings, income, and other evidence of ability to pay. These guidelines are intended to be of assistance to attorneys and to litigants in determining what level of payment would be expected given the relative income levels of the parties. In all cases where an order for child support may be established or modified, a guidelines worksheet must be filled out, regardless of the income of the parties.
Commentary 2017 – Preamble
The Child Support Guidelines Task Force for the 2016-2017 review (“Task Force”) was convened by Chief Justice of the Trial Court Paula M. Carey in the spring of 2016 to undertake the quadrennial review of the Massachusetts child support guidelines (“guidelines”) as required by federal regulations. See 45 C.F.R. § 302.56. In January 2017, amendments to § 302.56 became effective. The Task Force for this quadrennial review was not required to implement the January 2017 amendments, and thus did not do so in this review. However, where appropriate and constructive, the Task Force considered the policies underlying the 2017 amendments when making its recommendations.
The comprehensive review of the Task Force included reviewing each section of the guidelines, line by line, as a whole and in subcommittees. In formulating its recommendations, the Task Force considered public comments, relevant research, information from economic consultants, and the comments and experience of Task Force members. The Task Force was cognizant that child support in Massachusetts seeks to reflect the incremental cost of raising a child, separate and distinct from expenses of other household members. The Task Force recommended edits for simplification, clarification, and policy considerations. These guidelines include commentary to indicate the reasoning and intent behind the recommendations of the Task Force. Trial Court departments, litigants and attorneys may use the commentary to resolve questions of interpretation or application of the guidelines.
The changes made in the Preamble reflect that the guidelines apply to child support orders entered as of September 15, 2017. The fifth sentence of the Preamble was added for clarification and is consistent with the January 2017 changes to 45 C.F.R. § 302.56 (c). The Task Force further clarified that the guidelines worksheet must be completed in all cases where a child support order may be established or modified. A guidelines worksheet is necessary for the Court to determine whether there is a deviation from the presumptive child support order such that findings must be completed. See Section IV.
Commentary 2018 - Preamble
After the promulgation of the Child Support Guidelines in September 2017, the Trial Court reviewed two issues on which it received questions: the application of the adjustment factors for children 18 years of age or older, and the adjustment for child care, health care coverage, and dental/vision insurance costs when parents share financial 71
responsibility and parenting time approximately equally. In the June 2018 amendments, the Trial Court revised the age adjustment factors in the worksheet to eliminate counterintuitive outcomes in support orders for four or five children, at least one being 18 years of age or older. The Trial Court also redesigned the worksheet so that one worksheet can be used regardless of whether the parenting plan is shared, split, or approximately 2/3 and 1/3. It is no longer necessary to use multiple worksheets to determine the child support amount where there is shared or split parenting plans. The June 2018 amendments do not address the 2018/2019 changes to the federal tax code with regard to alimony and dependency exemptions.
Principles In establishing these guidelines, due consideration has been given to the following principles: 1. promoting parental financial responsibility for children; 2. meeting the child’s survival needs in the first instance, but, to the extent either parent enjoys a higher standard of living, allowing the child to enjoy that higher standard; 3. minimizing negative changes to the child’s standard of living; 4. protecting a basic subsistence level of income of parents; 5. recognizing that deviations should be used when appropriate to tailor a child support order to the unique circumstances of a particular family; 6. recognizing that parents should bear any additional expenses resulting from the maintenance of two separate households; 7. recognizing the non-monetary contributions and involvement of both parents; 8. recognizing the monetary and/or in-kind contributions of both parents in addition to the child support order; 9. recognizing the importance, availability, and cost of health care coverage for the child; 10. promoting simplicity and consistency in establishing and modifying child support orders; and 11. streamlining administration and minimizing problems of proof.
Commentary 2017 – Principles
The Task Force refined and reorganized the Principles section for clarification. The Task Force included Principle 5 regarding deviation to highlight that, where appropriate, the Court should deviate from the presumptive child support order amount and that attorneys and litigants should offer reasons as to why a deviation may be warranted. In making this change, the Task Force acknowledged the sentiments expressed by attorneys and litigants that there may be hesitation by the Court to deviate from the presumptive child support order. The Principles section has also been revised to reflect the January 2017 changes to 45 C.F.R. § 302.56 (c) by adding “basic” in Principle 4 of the Principles and changing “health insurance coverage” to “health care coverage” in Principle 9 of the Principles. 72
I. INCOME DEFINITION A. Sources of Income For purposes of these guidelines, income is defined as gross income from whatever source, regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority. However, income derived from a means-tested public assistance program (for example: TAFDC, SNAP, veterans’ benefits and SSI benefits) shall not be counted as income for either parent. Sources of income include, but are not limited to, the following: 1. salaries, wages, overtime and tips, 2. income from self-employment; 3. commissions; 4. severance pay; 5. royalties; 6. bonuses; 7. interest and dividends; 8. income derived from businesses/partnerships; 9. social security excluding any benefit due to a child’s own disability1; 10. non means-tested veterans’ benefits; 11. military pay, allowances and allotments; 12. insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses; 13. workers’ compensation; 14. unemployment compensation;
1 If a parent receives social security benefits or SSDI benefits and the children of the parties receive a dependency benefit derived from that parent’s benefit, the amount of the dependency benefit shall be added to the gross income of that parent. This combined amount is that parent’s gross income for purposes of the child support calculation.
If the dependency benefit derives from the payor’s benefit and the amount of the dependency benefit exceeds the child support obligation calculated under the guidelines, then the payor shall not have responsibility for payment of current child support in excess of the dependency benefit. However, if the guidelines are higher than the dependency benefit that derives from the payor’s benefit, the payor must pay the difference between the dependency benefit and the weekly child support amount under the guidelines. See Rosenberg v. Merida, 428 Mass. 182 (1998); Schmidt v. McColluch-Schmidt, 86 Mass. App. Ct. 902 (2014). 73
15. pensions; 16. annuities; 17. distributions and income from trusts; 18. capital gains in real and personal property transactions to the extent that they represent a regular source of income; 19. spousal support received from a person not a party to this order; 20. contractual agreements; 21. perquisites or in-kind compensation to the extent that they represent a regular source of income; 22. unearned income of children, in the Court’s discretion; 23. income from life insurance or endowment contracts; 24. income from interest in an estate, either directly or through a trust; 25. lottery or gambling winnings received either in a lump sum or in the form of an annuity; 26. prizes or awards; 27. net rental income; 28. funds received from earned income credit; and 29. any other form of income or compensation not specifically itemized above.
B. Overtime and Secondary Jobs 1. The Court may consider none, some, or all overtime income or income from a secondary job. In determining whether to disregard none, some or all income from overtime or a secondary job, due consideration must first be given to the history of the income, the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime or secondary job on the parenting plan, and whether the overtime work is a requirement of the job. 2. If after a child support order is entered, a payor or recipient begins to work overtime or obtains a secondary job, neither of which was worked prior to the entry of the order, there shall be a presumption that the overtime or secondary job income should not be considered in a future child support order. 74
C. Self-Employment and Other Business Income Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely-held corporation is defined as gross receipts minus ordinary and necessary expenses required to produce income. In general, income and expenses from self- employment or operation of a business should be carefully reviewed to determine the appropriate level of gross income available to the parent to satisfy a child support obligation. In many cases, this amount will differ from a determination of business income for tax purposes.
D. Imputation of Income 1. When the Court finds that a parent has, in whole or in part, undocumented or unreported income, the Court may reasonably impute income to the parent based on all the evidence submitted, including, but not limited to, evidence of the parent’s ownership and maintenance of assets, and the parent’s lifestyle, expenses and spending patterns. 2. Expense reimbursements, in-kind payments or benefits received by a parent, personal use of business property, and payment of personal expenses by a business in the course of employment, self-employment, or operation of a business may be included as income if such payments are significant and reduce personal living expenses. 3. In circumstances where the Court finds that a parent has unreported income, the Court may adjust the amount of income upward by a reasonable percentage to take into account the absence of income taxes that normally would be due and payable on the unreported income.
E. Attribution of Income 1. Income may be attributed where a finding has been made that either parent is capable of working and is unemployed or underemployed. 2. If the Court makes a determination that either parent is earning less than he or she could earn through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its child support order. 3. The Court shall consider the age, number, needs and care of the children covered by the child support order. The Court shall also consider the specific circumstances of the parent, to the extent known and presented to the Court, including, but not limited to, the assets, residence, education, training, job skills, literacy, criminal record and other employment barriers, age, health, past employment and earnings history, as well as the parent’s record of seeking work, and the availability of employment at the attributed income level, the availability of employers willing to hire the parent, and the relevant prevailing earnings level in the local community. 75
F. Non-Parent Guardian The income of a non-parent guardian shall not be considered for purposes of calculating a child support obligation.
Commentary 2017 – Section I. – Income Definition
A. Sources of Income
Although the Task Force did not recommend any substantive changes to Section I. A., Sources of Income, it considered whether to do so in light of emerging areas of income-producing activities such as transportation networking companies, crowd funding, domain site flipping, and inconsistent, short-term home rentals. The Task Force determined that these income-producing activities were encompassed by the existing list of sources of income.
The Task Force received public comment regarding means-tested and non means-tested veterans’ benefits and, in response, clarified that means-tested veterans’ benefits are a type of income that is not included as income for child support calculation purposes. Due to the complexity of determining whether a veteran’s benefit is means-tested, the Task Force strongly recommended that the Court should inquire regarding the benefit.
If the Court determines that there has been misrepresentation of income to a taxing authority or on a court-filed financial statement and/or guidelines worksheet, the Court may be required to report the information to the appropriate authority. See Rule 2.15(B) of SJC Rule 3:09: Code of Judicial Conduct.
B. Overtime and Secondary Jobs
The Task Force recommended continuation of the presumptive exclusion of certain overtime and secondary job income from the calculation of gross income for child support purposes. The Task Force rewrote and moved for clarification the sentence that previously read, “The Court may consider none, some, or all overtime income even if overtime was earned prior to the entry of the order.” The Task Force also determined that the language in this section applies to payors and recipients since the income of both parents is considered in setting a child support order.
C. Self-Employment and Other Business Income
The Task Force renamed, reorganized and refined this section to focus on issues related to self-employment and the operation of a business. The Task Force moved the language regarding imputing income to the newly created Section I. D. entitled, “Imputation of Income”. Because the Task Force felt it was redundant, it deleted from the guidelines the sentence, “The calculation of income for purposes of this section may increase gross income by certain deductions or other adjustments taken for income tax purposes.”. The Appeals Court noted in Whelan v. Whelan, 74 Mass. App. Ct. 616, 626-27 (2009), “in determining income from self-employment, a judge must determine whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes.” As further direction, the Appeals Court noted in an unpublished decision, Zoffreo v. Zoffreo, 76 Mass. App. Ct. 1105 (2010), “[t]he fact that [a parent] is permitted under the tax laws to deduct an amount for depreciation does not mean that those funds, which are not out of pocket expenses, are not available to pay child support.”
For additional decisional guidance regarding calculating gross income, the Supreme Judicial Court held “that a determination whether and to what extent the undistributed earnings of an S corporation should be deemed available income to meet a child support obligation must be made based on the particular circumstances presented in each case.” J.S. v. C.C., 454 Mass. 652, 662-63 (2009). The Supreme Judicial Court included a non-exhaustive list of relevant factors to consider when making this determination, such as “a shareholder’s level of control over corporate distributions”, “the legitimate business interests justifying corporate earnings”, the “affirmative evidence of an attempt to shield income by means of retained earnings”, and “the allocation of burden of proof in relation to the 76
treatment of an S corporation’s undistributed earnings for purposes of determining income available for child support[.]” J.S. v. C.C., 454 Mass. 652, 662-65 (2009).
In Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525 (2016), the Appeals Court addressed the appropriateness of including rental income when determining income for child support purposes. The decision notes that “there is no risk of double counting, where ‘neither the value of [the father’s interest in [the asset]] nor the [father’s] ability to earn income is diminished by treating the [father’s interest in [the asset]] as a marital asset as well as a source of income by which [the father] can meet his support obligations.’” Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 528 (2016) (quoting Champion v. Champion, 54 Mass. App. Ct. 215, 221 (2002)).
D. Imputation of Income
The Task Force renamed, reorganized and refined the section previously entitled, “Unreported Income” to focus on issues related to the imputation of income. Income may be imputed when there are actual resources available to the parent that are not reported for tax purposes.
In general terms, undocumented income is income that does not result in the issuance of a tax reporting form. Unreported income is any income that is received and required to be reported that the taxpayer does not report on his or her taxes.
The Appeals Court decision in Crowe v. Fong, 45 Mass. App. Ct. 673 (1988) is instructional regarding Section I. D. 2. In Crowe, the payor earned $275 per week working at a business owned by his mother, lived rent-free in a home owned by his father, and had use of a vehicle. The Appeals Court upheld the trial judge’s “characterization of [the payor’s] free use of the home as ‘perquisite or in-kind income’ for purposes of calculating his support obligation under the guidelines[.]” Crowe v. Fong, 45 Mass. App. Ct. 673, 680-81 (1988).
E. Attribution of Income
The Task Force reorganized and refined this section for clarification and to distinguish attributed income from imputed income. Income is attributed to a parent when the Court determines a parent is capable of earning more than is currently being earned and assigns a hypothetical amount of income to the parent. The Task Force, in consideration of the January 2017 changes to 45 C.F.R. § 302.56 (c) (2017), revised the factors to be considered when attributing income to a parent.
In P.F. v. Department of Revenue, 90 Mass. App. Ct. 707 (2016), the Appeals Court addressed attribution of income where the payor is incarcerated. “‘Income may be attributed where a finding has been made that [the payor] is capable of working and is unemployed or underemployed,’ . . . or where the payor owns ‘substantial assets.’” P.F. v. Department of Revenue, 90 Mass. App. Ct. 707, 710 (2016) (quoting Wasson v. Wasson, 81 Mass. App. Ct. 574, 581 (2012), quoting from Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996)). However, where there is “no income or assets from which to pay child support”, the Court may not attribute income to the payor based on the payor’s prior earning capacity, even if the payor is incarcerated due to committing a crime against the child for whom child support is being paid. P.F. v. Department of Revenue, 90 Mass. App. Ct. 707, 710-11 (2016).
F. Non-Parent Guardian
The Task Force did not recommend any changes to this section.
II. FACTORS TO BE CONSIDERED IN SETTING THE CHILD SUPPORT ORDER A. Relationship to Alimony or Separate Maintenance Payments 1. These guidelines were developed with the understanding that alimony is for the support of a spouse, while child support is for the support of children. 77
2. These guidelines were developed with the understanding that child support is non- deductible by the payor and non-taxable to the recipient. These guidelines do not preclude the Court from deciding that any support order be designated in whole or in part as alimony or unallocated support without it being deemed a deviation, provided that the tax consequences are considered in determining the support order and the after-tax support received by the recipient is not diminished. The parties have the responsibility to present to the Court the tax consequences of proposed orders. 3. Chapter 124 of the Acts of 2011, entitled, “An Act Reforming Alimony in the Commonwealth”, amended G. L. c. 208 and prohibits the use of gross income which the Court has already considered in making a child support order from being used again in determining an alimony order. See G. L. c. 208, § 53 (c) (2). The parties may consider preparing alternate calculations of alimony and child support to determine the most equitable result for the children and the parties. Depending upon the circumstances, alimony may be calculated first, and in other circumstances child support may be calculated first. Judicial discretion is necessary and deviations shall be considered.
B. Claims of Personal Exemptions for Child Dependents In setting a support order, the Court and the parties shall consider the allocation of personal exemptions for child dependents between the parties to the extent permitted by law.
C. Minimum and Maximum Levels 1. These guidelines are intended to protect a minimum subsistence level for those parents obligated to pay child support whose gross income is $115 per week or less. However, it is the obligation of all parents to contribute to the support of their children. To that end, a minimum order of $25 per week should enter. This minimum should not be construed as limiting the Court’s discretion to set a higher or lower order, should circumstances warrant, as a deviation from the guidelines. See Section IV. 2. These guidelines are calculated up to a maximum combined available annual gross income of the parties of $250,000. In cases where combined available income is over $250,000, the guidelines should be applied on the first $250,000 in the same proportion as the recipient’s and payor’s actual income as provided on Line 2h of the guidelines worksheet. In cases where income exceeds this limit, the Court should consider the award of support at the $250,000 level as the minimum presumptive order. The child support obligation for the portion of combined available income that exceeds $250,000 shall be at the discretion of the Court. 78
21 D. Parenting Time 1. These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests. The basic calculations under these guidelines are based upon the children having a primary residence with one parent and spending approximately one-third of the time with the other parent. 2. These guidelines apply to all types of parenting plan schedules. Information regarding whether the parents share financial responsibility and parenting time for the children approximately equally (shared), whether the children reside primarily with one parent for approximately 2/3 of the time, and whether, in a family with more than one child covered by the order, each parent provides a primary residence for at least one child (split) is entered directly into the worksheet. The worksheet will calculate the presumptive child support order based on the information entered into the worksheet. 3. Where parenting time is substantially less than one-third for the parent who is not the residential parent, the Court may consider deviation by an upward adjustment to the amount calculated under the guidelines worksheet. See Section IV. B. 8.
E. Child Care Costs 1. Reasonable child care costs for the children covered by the child support order and due to gainful employment of either parent are to be deducted from the gross income of the parent who pays the cost. The guidelines worksheet makes an adjustment so that the parents share the burden of the cost proportionately. The adjustment involves a two-step calculation. First, a parent who is paying the child care deducts the out-of-pocket cost from his or her gross income. Second, the parties share the total child care costs for both parents in proportion to their income available for support. The combined adjustment for child care and health care costs is capped at fifteen percent of the child support order. 2. In appropriate circumstances, child care costs may include those due to training or education reasonably necessary to obtain gainful employment or enhance earning capacity. The Court may consider a deviation where the child care cost is disproportionate to income. See Section IV. B. 7.
F. Child Support for Children Between the Ages of 18 and 23 1. By statute, the Court has discretion either to order or to decline to order child support for children age 18 or older. If the Court exercises its discretion to order child support for children age 18 or older, the guidelines formula reduces the amount of child support in accordance with Table C of the guidelines worksheet. For the guidelines calculation to account for families with children both under age 18 and age 18 or older, the guidelines worksheet requires the input of information regarding the number of children age 18 or older and under age 18. 79
2. A child age 18 or older who is enrolled in and attending high school shall be deemed to be under age 18 for purposes of the guidelines and Table C, absent deviation. 3. In determining whether to order child support for a child age 18 or older, the Court shall consider the reason for the child’s continued residence with and principal dependence on the recipient, the child’s academic circumstances, the child’s living situation, the available resources of the parents, and each parent’s contribution to the costs of post-secondary education for the child and/or other children of the family. The Court may also consider any other relevant factors.
G. Contribution to Post-secondary Educational Expenses 1. By statute, the Court has discretion either to order or to decline to order a parent to contribute to post-secondary educational expenses. Contribution to post-secondary educational expenses is not presumptive. 2. In determining whether to order contribution to post-secondary educational expenses, the Court shall consider the cost of the post-secondary education, the child’s aptitudes, the child’s living situation, the available resources of the parents and child, and the availability of financial aid. The Court may also consider any other relevant factors. 3. No parent shall be ordered to pay an amount in excess of fifty percent of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst, unless the Court enters written findings that a parent has the ability to pay a higher amount. Costs for this purpose are defined as mandatory fees, tuition, and room and board for the University of Massachusetts-Amherst, as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges. This section applies to all orders requiring parental contribution to post-secondary educational expenses, regardless of where the child resides or attends school. 4. When exercising its discretion to order child support for a child over age 18 and contribution to the child’s post-secondary educational expenses, the Court shall consider the combined amount of both orders.
H. Health Care Coverage 1. a. Each parent may deduct from gross income the reasonable cost of individual or family health care coverage actually paid by that parent. If there is an additional cost to insure a person not covered by this order, and the Court determines that such additional cost would unreasonably impact the amount of child support, then some or all of such additional cost shall not be deducted. b. The guidelines worksheet makes an adjustment so that the parents share the burden of the cost proportionately. The adjustment involves a two-step calculation. First, a parent who is 80
paying the health care deducts the out-of-pocket cost from his or her gross income. Second, the parties share the total health care costs for both parents in proportion to their income available for support. The combined adjustment for child care and health care costs is capped at fifteen percent of the child support order. 2. When the Court makes an order for child support, the order shall include an order of health care coverage unless the payor and recipient agree in writing that such coverage will be provided by other means. 3. a. The Court shall determine whether health care coverage that may be extended to cover the child is available through an employer or otherwise available at a reasonable cost. Health care coverage shall be deemed available to the payor at reasonable cost if it is available through an employer. b. If health care coverage is available at a reasonable cost, the Court shall then determine whether the cost of such coverage creates an undue hardship on the payor, and, if that determination is made, the payor shall not be required to provide such coverage. In determining whether the cost of health care coverage creates an undue hardship for the payor, the Court may consider whether the cost of maintaining health care coverage would prevent payment of some or all of the child support order, whether the available coverage lacks the comprehensiveness to meet the health care needs of the child such that significant uninsured medical expenses will be incurred, whether the payor’s gross income is less than 300% of the federal poverty guidelines for the payor’s household, and any other relevant factors. c. When such health care coverage is available at a reasonable cost and does not cause an undue hardship, the Court shall include in the child support order a requirement that such insurance for the child be obtained or maintained. d. If the Court determines that health care coverage is not available at a reasonable cost or that ordering health care coverage creates an undue hardship for the payor and the IV-D agency is providing services, the Court shall enter an order requiring the payor to notify the IV-D agency if access to health care coverage for the child becomes available. If the Court determines that health care coverage is not available at a reasonable cost or that ordering health care coverage creates an undue hardship for the payor and the IV-D agency is not providing services, the Court shall enter an order requiring the payor to notify the recipient if access to health care coverage for the child becomes available.
I. Dental/Vision Insurance 1. Each parent may deduct from gross income the reasonable cost actually paid by that parent of dental/vision insurance insuring the children covered by this order. 2. If there is an additional cost to insure a person not covered by this child support order, and the Court determines such additional cost would unreasonably reduce the amount of child support, then some or all of such additional cost shall not be deducted from gross income. 81
3. The cost of dental/vision insurance insuring the children covered by this order is included on the guidelines worksheet in the combined child care and health care costs adjustment.
J. Routine Uninsured Medical and Dental/Vision Expenses and Extraordinary Uninsured Medical and Dental/Vision Expenses 1. The recipient shall be responsible for payment of the first $250 each year in combined routine uninsured medical and dental/vision expenses for all the children covered by this child support order. For amounts above that limit, at the time of entry of an order establishing or modifying the child support order, the Court shall allocate expenses between the parties without adjustment to the child support order. 2. The payment of extraordinary uninsured medical and dental/vision expenses incurred for the children, absent agreement of the parties, shall be treated on a case-by-case basis (for example: orthodontia, psychological/psychiatric counseling, etc.). Where the Court makes a determination that such medical and dental/vision services are necessary and are in the best interests of the children, the Court shall allocate such expenses between the parties.
K. Existing Support Obligations and Responsibility for Children Not in the Case under Consideration 1. When an initial order or a modification of an existing order is sought for a child covered by the order in the case under consideration, the amount actually paid by a parent pursuant to a pre-existing support order for a child or spouse not in the case under consideration shall be deducted from the gross income of that parent where that parent provides sufficient proof of the order and payments made. Payments on arrearages shall not be deducted from gross income. 2. When an initial order or a modification of an existing order is sought for a child covered by the order in the case under consideration, the amount of voluntary payments actually paid to support a child not in the case under consideration and with whom the parent does not reside shall be deducted from the gross income of that parent, but only to the extent the Court determines the payments to be reasonable. The parent who seeks the deduction must provide sufficient proof of the legal obligation to support the child and of actual payments made to the other parent or guardian. 3. When an initial order or a modification of an existing order is sought for a child covered by the order in the case under consideration, a hypothetical amount of child support for a child with whom the parent resides but for whom no child support order exists shall be deducted from the gross income of the parent. The parent seeking the deduction must provide sufficient proof of the legal obligation to support the child and of the gross income of that child’s other parent. The hypothetical child support amount shall be calculated according to the guidelines worksheet using the gross incomes of both parents of the child for whom the hypothetical child support amount is being calculated. 82
4. Obligations to a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order, but such obligations should not be considered a reason to decrease an existing order.
L. Families with More than Five Children The guidelines formula applies to families with one to five children. For more than five children, the order should be at least the amount ordered for five children.
M. Contribution to Other Child-Related Expenses In cases where the Court makes a determination that there are additional child-related expenses such as extra-curricular activities, private school, or summer camps, which are in the best interest of the child and which are affordable by the parties, the Court may allocate costs to the parties on a case-by-case basis.
Commentary 2017 – Section II. – Factors To Be Considered In Setting The Child Support Order
A. Relationship to Alimony or Separate Maintenance Payments
The Task Force discussed the challenges related to the tax consequences of unallocated support. The Task Force recommended that the Court, especially in cases involving parties with disparate levels of income, consider an unallocated support order. By designating some, or all, of a payor’s support obligation as tax-deductible to the payor and a taxable payment to the recipient, a significant tax benefit may be achieved.
Under Fechtor v. Fechtor, 26 Mass. App. Ct. 859 (1989), it is the responsibility of the parties to bring the tax implications of a support order to the attention of the Court. Parties and attorneys should familiarize themselves with the applicable provisions of I.R.C. § 71, which provides specific rules that must be followed in order to fashion support orders that will be deemed tax-deductible under the Internal Revenue Code.
The relationship between alimony and child support remained an issue during this review as it was during the 2012 review. When issuing an alimony order, “the court shall exclude from its income calculation gross income which the court has already considered for setting a child support order.” G. L. c. 208, § 53 (c) (2). However, the converse is not stated in the statute.
Since the 2012 review and report, the Massachusetts appellate courts have not issued any decisions on point, nor has there been a statutory change. The Task Force discussed this conundrum and determined that, despite the desire to provide more instruction, no changes to this section were recommended at this time. The Task Force recommended that this issue be reviewed again during the next quadrennial review.
B. Claims of Personal Exemptions for Child Dependents
The Task Force refined this section to emphasize the importance of considering the allocation of the dependency exemptions.
C. Minimum and Maximum Levels
The Task Force considered whether the minimum support order required adjustment. The minimum support order has not changed since 2002 when it was established at $18.46 per week. After discussion, the Task Force 83
recommended that the minimum support order be increased to $25 per week. This increase is consistent with economic data on the increase in the overall cost of living in Massachusetts since 2002. The guidelines chart has been adjusted to reflect that the minimum support order applies to combined available income up to $115 per week.
For informational assistance with regard to child support when the parents’ combined gross income is over $250,000, section 6 of the guidelines worksheet calculates the amount by which each parent’s available income exceeds $250,000. Child support based on income above $250,000 is discretionary. The excess income information in section 6 of the guidelines worksheet may be considered on a case-by-case basis.
D. Parenting Time
The Task Force discussed at length the consequences of the changes that were incorporated by the 2012 Task Force with regard to when parenting time is more than one-third but less than fifty percent. The Task Force agreed that the provision relating to these circumstances needed to be eliminated. The Task Force considered public comment, attorney and judicial experience, the 2008 Report of the Child Support Guidelines Task Force, and the Final Report of the 2012 Task Force when making this determination. The 2012 change increased litigation and acrimony between parents, shifted the focus from a parenting plan that is in the best interests of the children to a contest about a parenting plan that attempts to reduce a child support order, and failed to create the consistency in child support orders that it sought to create.
The Task Force suggested that the first step in determining a child support order is actually creating a parenting plan that is best for the children, recognizing that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests. Child support should not be driving the parenting plan. Once the parenting plan is established, then calculations may occur. It is important to note again here that the Task Force specifically created a principle regarding the appropriate use of a deviation where the circumstances of a family require one. See Principles, Principle 5.
The Task Force recommended deleting the provisions inserted in the 2009 guidelines that limited the deduction of other support orders from gross income when making certain calculations related to parenting time. This Task Force was unable to determine why the provisions were included, and thus determined that equity required their deletion.
E. Child Care Costs
The Task Force discussed at length how to address the concerns raised by many people regarding the significant costs of child care. The Task Force recommended a proportional adjustment to the child support order based on child care and health care costs. The proportional adjustment for the costs is not dollar-for-dollar because the significant costs of child care and health care coverage could unfairly skew a child support order. Instead, the adjustment is capped, either up or down, at fifteen percent of the child support order.
F. Child Support for Children Between the Ages of 18 and 23
The Task Force renamed and restructured the section previously entitled, “Age of the Children”. The Task Force clarified that these guidelines apply in all cases where a child support order is established or modified and not just in cases involving children under age 18. See 45 C.F.R. § 302.56 (a) (2017). That Massachusetts by statute allows for, but does not require, child support until age 23 does not negate the federal requirement that the guidelines must apply in all cases. However, the C.F.R. does not mandate that the guidelines be identical for children of all ages. For dependent children between 18 and 21, child support may be ordered if the dependent child is domiciled with a parent and is principally dependent on that parent. See G. L. c. 208, § 28, G. L. c. 209C, § 9 and G. L. c. 209, § 37.
For dependent children between 21 and 23, child support may be ordered if the dependent child is domiciled with a parent and is principally dependent on that parent due to enrollment in an educational program, as long as the program is not beyond an undergraduate degree. See id. Although the Task Force received public comment suggesting that child support end at age 18, the Task Force did not amend the provision retaining discretion in entering child support orders for children between the ages of 18 and 23 because this discretion is statutory. The Task Force strongly recommended that, until or unless the Massachusetts Legislature amends the child support 84
statutes to clarify that child support is mandatory through graduation of high school, the Court consider child support orders for those children who have turned 18 but are still in high school as mandatory rather than permissive.
Because these guidelines apply to all child support orders, including those for children up to age 23, the Task Force discussed whether the application of the guidelines through the guidelines worksheet should result in a reduction in the base amount of child support for children who are age 18 or older and not attending high school, but nevertheless eligible for child support pursuant to Massachusetts law. The Task Force agreed that a twenty-five percent reduction is appropriate as it takes into consideration factors typical of this age group. For example, the child may be living away at school thereby reducing some of the household expenses for the recipient or the child may be living at home and is not enrolled in a post-secondary educational program and should be working and contributing to the household expenses. The reduction balances the requirement imposed by federal regulation that all child support orders are the product of a formula established by guidelines, while also considering important factors unique to children between the ages of 18 and 23. See M.C. v. T.K., 463 Mass. 226, 231 (2012) (“The Chief Justice of the Trial Court is authorized to promulgate guidelines establishing presumptive child support awards, based on articulated principles and calculated according to specified mathematical formulas.”) Nothing in this section limits the ability of the Court to deviate from the presumptive order where appropriate. For example, the child may be living at home and commuting to a post-secondary educational program.
This section shall not be construed to change the rule set forth in Feinberg v. Diamant, 378 Mass. 131 (1979) allowing the Court to require a financially able parent to “contribute to the support of an adult child who by reason of mental or physical infirmity incurs expenses that he or she is unable to meet.” Feinberg v. Diamant, 378 Mass. 131, 134 (1979). These matters are addressed in equity actions.
G. Contribution to Post-secondary Educational Expenses
The Task Force created a new section to address the complexity of contributions to post-secondary educational expenses. Post-secondary educational expenses have increased exponentially since 1976 when the Massachusetts Legislature amended statutes to permit the Court to order parents to pay for educational expenses. Overall, both public and private four-year college expenses for fees, tuition, room and board, have increased approximately 250%, as adjusted for inflation. See College Board, Annual Survey of Colleges, 2017. The Task Force shared the pervasive concern that many parents cannot pay post-secondary educational expenses from their income, while meeting other expense obligations. The Task Force intended to discourage orders requiring parents to incur liability for loans in excess of state university costs unless the parents agree to accept such liabilities. The Task Force also intended an expense limitation to provide general uniformity in court-ordered, post-secondary educational expenses contributions.
The limitation on post-secondary educational expenses orders is recommended for most cases, but it is not mandatory. The Task Force does not intend the limitation to apply to children already enrolled in post-secondary education before the effective date of these guidelines or to parents who are financially able to pay educational expenses using assets or other resources.
The University of Massachusetts-Amherst was designated as the benchmark for maximum orders because it was the flagship, and most expensive, Massachusetts state college when these guidelines became effective.
H. Health Care Coverage
The Task Force renamed, reorganized, and revised this section. The phrase “health care coverage” was changed from “health insurance” to reflect recent changes in federal law, which now references both private and public health care coverage. Under federal regulations, child support guidelines must “[a]ddress how the parents will provide for the child’s health care needs through private or public health care coverage and/or through cash medical support.” 45 C.F.R. § 302.56 (c) (2) (2017) (emphasis added). Under 45 C.F.R. § 303.31 (a) (3), “[c]ash medical support or the cost of health insurance is considered reasonable in cost if the cost to the parent responsible for providing medical support does not exceed five percent of his or her gross income or, at State option, a reasonable 85
alternative income-based numeric standard defined in State law, regulations or court rule having the force of law or State child support guidelines adopted in accordance with § 302.56(c) of [Chapter 45].” The Massachusetts Legislature has not amended G. L. c. 119A to reflect the federal definition of reasonableness or to grant the authority to order cash medical support. Nor does G. L. c. 119A allow the Court to order either parent to provide health care coverage. See G. L. c. 119A, § 12 (b) (5). The Task Force strongly recommended that the Massachusetts Legislature amend G. L. c. 119A to be consistent with the federal regulations.
The Task Force also made revisions that more clearly reflect the statutory requirements relating to orders for health care coverage. Before requiring a payor to obtain health care coverage, the Court must determine that such coverage is available at reasonable cost, “provided that the cost of such coverage does not create an undue hardship upon the [payor].” G. L. c. 119A, § 12 (b) (5). Because “undue hardship” is not defined by statute or case law, factors relating to determining whether an order of health care coverage creates an undue hardship on the payor are included in these guidelines. There are circumstances where the combined child support order and the cost to the payor for obtaining and maintaining health care coverage exceed the amount allowed under law to be ordered withheld from a payor’s income. If health care coverage is ordered in these circumstances, and the costs for the health care coverage are deducted from the payor’s income before the child support order is paid, the child support order is not paid in full and the payor accrues child support arrears. For purposes of this section, an undue hardship may occur if the combined health care coverage and child support order exceeds statutory garnishment limits. The Task Force determined that it was appropriate to adopt the percentage of poverty level that MassHealth’s Children’s Health Insurance Program (CHIP) uses for eligibility screening. See http://children.massbudget.org/masshealth. The Court retains the discretion to consider other relevant factors in making the determination regarding undue hardship.
If health care coverage is not currently available at a reasonable cost or the payment of health care coverage causes an undue hardship, the Task Force removed the requirement that the Court enter an order requiring the payor to obtain and maintain health care coverage for the child if and when the parent has access to such coverage. Instead, the Task Force added a provision that requires the payor to notify the IV-D agency or the recipient if health care coverage becomes available. If health care coverage becomes available, a modification of the child support order may be appropriate to reflect the cost of such coverage, as well as to determine whether there is any undue hardship.
In addition to child care costs, the Task Force also discussed at length how to address the concerns raised by many people regarding the significant costs of health care coverage. The Task Force recommended a proportional adjustment to the child support order based on child care and health care costs. The proportional adjustment for the costs is not dollar-for-dollar because the significant costs of child care and health care coverage could unfairly skew a child support order. Instead, the adjustment is capped, either up or down, at fifteen percent of the child support order.
The Task Force recommended that, where appropriate, the Court should examine whether the parent who seeks to deduct the total amount of health care coverage is including in that total amount the cost for covering persons not covered by the order under consideration. In that circumstance, the Court may determine that some or all of the additional cost should not be deducted from gross income on the guidelines worksheet.
I. Dental/Vision Insurance
The Task Force reorganized this section. The Task Force determined that the costs of the dental and vision insurance covering children under this order shall be included as a component of the child care and health care adjustment.
J. Routine Uninsured Medical and Dental/Vision Expenses and Extraordinary Uninsured Medical and Dental/Vision Expenses
The Task Force reorganized the sections previously entitled, “Routine Uninsured Medical and Dental Expenses” and “Uninsured Extraordinary Medical and Dental Expenses” into one section without any substantive changes.
K. Existing Support Obligations and Responsibility for Children Not in the Case under Consideration 86
The Task Force recommended changes to this section to clarify the different circumstances that may result in a deduction from gross income when a parent has a legal responsibility to support a child not part of the case currently being considered. The Task Force clarified that where applicable either parent may seek the deductions from gross income and that sufficient proof must be provided. The Task Force reviewed language from the New Jersey, North Carolina, Ohio, and Tennessee child support guidelines to assist in drafting the clarifications.
In Department of Revenue v. Mason M., the Supreme Judicial Court endorsed the use of deducting a hypothetical support order from a parent’s gross income where that parent had multiple children to support. Department of Revenue v. Mason M., 439 Mass. 665, 671-72 (2003). However, to calculate a hypothetical amount of child support, the gross incomes of both parents of that child must be used. This calculation can be difficult to compute because the Court does not have the non-party parent’s gross income. The burden is on the parent who seeks to deduct a hypothetical amount to provide to the Court the information necessary for calculating the hypothetical amount, including the non-party parent’s gross income.
L. Families with More than Five Children
The Task Force did not recommend any substantive changes to this section.
M. Contribution to Other Child-Related Expenses
The Task Force renamed this section for consistency. “Post-secondary education” was deleted from this section only because the Task Force created a new section that addresses contribution to post-secondary educational expenses. See Section II. G.
Commentary 2018 – Section II. – Factors To Be Considered In Setting The Child Support Order
D. Parenting Time
This section was amended to eliminate the directions on how the guidelines should be calculated based on the type of parenting plan. The directions are no longer necessary because of the newly-designed worksheet effective on June 15, 2018. This section now reflects that one worksheet is used to calculate the presumptive child support order for shared, split and approximately 2/3 and 1/3 parenting plans.
F. Child Support for Children Between the Ages of 18 and 23
This section was amended to reflect the changes in Table B and Table C in the June 2018 amendments. In the June 2018 amendments, the September 2017 Table B was split into two separate tables. Table B now lists the adjustment factors for the number of children, and Table C lists the adjustment percentages for children’s ages.
The application of the adjustment percentages in this section was revised by the Trial Court to eliminate counterintuitive outcomes in support orders for four or five children, at least one being 18 years of age or older. The age adjustments in the September 2017 Table B were based on applying the 25 percent discount listed in the guidelines in equal proportion to the number of children 18 years of age or older. The age adjustment percentages in the June 2018 Table C are based on applying the 25 percent discount to the oldest children last. That is, the 25 percent discount is applied only to the increases in child support for additional children, rather than to the overall amount of support. The children 18 years of age or older are accounted for last in this calculation to fully preserve the increases in child support for additional younger children.
III. MODIFICATION A. A child support order may be modified if any of the circumstances listed below exist. 1. There is an inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines. 87
2. Previously ordered health care coverage is no longer available. 3. Previously ordered health care coverage is still available but no longer at a reasonable cost or without an undue hardship. 4. Access to health care coverage not previously available to a parent has become available. 5. Any other material and substantial change in circumstances has occurred.
B. Upon a request for modification of an order that deviated from the guidelines at the time it was entered, the Court shall apply the existing deviation to the modification action if: 1. the facts that gave rise to deviation still exist; and 2. deviation continues to be in the child’s best interest; and 3. the guidelines amount would be unjust or inappropriate under the circumstances.
C. Section III. B. does not preclude deviations based on other grounds set forth in Section IV. or grounds for modification as set forth in Section III. A.
Commentary 2017 – Section III. – Modification
The Task Force deleted Paragraph B of the 2013 guidelines because it was premised on the assumption that Massachusetts law provides for a separate standard to be used by the Court when the Department of Revenue is providing IV-D services in a case where the order is less than three years old. While the Department of Revenue is not required to use the inconsistency standard when determining whether to provide IV-D services to seek a modification of an order that is less than three years old, the Court must apply the inconsistency standard once any complaint for modification is filed and is before the Court. See 57 Fed. Reg. 61559, 61577 (1992). See also G. L. c. 208, § 28, G. L. c. 209C, § 20 and G. L. c. 209, § 37.
The Department of Revenue’s review process does not prohibit an individual from filing a complaint for modification on his or her own, regardless of whether the case is receiving IV-D services.
The Task Force refined the language to clarify that if circumstances that resulted in a deviation are still in existence during a modification action, those circumstances shall be considered to remain even though it may be appropriate to modify the existing order. For example, a child may have a medical condition that results in ongoing, extraordinary medical expenses and the existing child support order deviates from the guidelines amount. The recipient is now unemployed and files a complaint for modification. The underlying circumstances for the existing deviation remains; however, the Court also considers the additional circumstances. 88
IV. DEVIATION A. The Court, or the parties by agreement approved by the Court, may deviate from these guidelines and overcome the presumptive application of these guidelines, provided the Court enters specific written findings stating: 1. the amount of the order that would result from application of the guidelines; 2. that the guidelines amount would be unjust or inappropriate under the circumstances; 3. the specific facts of the case which justify departure from the guidelines; and 4. that such departure is consistent with the best interests of the child.
B. Circumstances which may support deviating, above or below the presumptive guidelines amount, including the minimum order amount, are as follows: 1. the parties agree and the Court determines the agreement to be fair and reasonable and approves their agreement; 2. a child has ongoing special needs or aptitudes with financial consequences; 3. a child has ongoing extraordinary mental, physical, or developmental needs with financial consequences; 4. a parent has ongoing extraordinary mental, physical, or developmental needs with financial consequences; 5. a parent has extraordinary expenses for health care coverage; 6. a parent has extraordinary travel or other expenses related to parenting; 7. a parent is absorbing a child care cost that is disproportionate in relation to his or her income; 8. a parent provides substantially less than one-third of the parenting time for a child or children; 9. the payor is incarcerated and has insufficient financial resources to pay support; 10. application of the guidelines, particularly in low income cases, leaves a parent without the ability to self support; 11. application of the guidelines would result in a gross disparity in the standard of living between the two households such that one household is left with an unreasonably low percentage of the combined available income; 12. application of the guidelines may adversely impact reunification of a parent and child where the child has been temporarily removed from the household in accordance with G. L. c. 119; and 89
13. absent deviation, application of the guidelines would lead to an order that is unjust, inappropriate or not in the best interests of the child, considering the Principles of these guidelines.
Commentary 2017 – Section IV. – Deviation
The Task Force refined and clarified the circumstances where deviation may be appropriate. The Task Force reordered this section for clarification purposes only and not to prioritize any one factor over another. The Task Force emphasized that a deviation may be appropriate for a family and encourages the Court to deviate where circumstances require it.
The Task Force clarified in the first phrase of Section IV. B. that it is permissible to deviate to an amount below the presumptive guidelines amount. Because the deviation circumstances affect an ongoing child support award, rather than a one-time or occasional allocation, the Task Force emphasized that certain circumstances must be ongoing and with financial consequences for them to be considered appropriate for a deviation. In Section IV. B. 8., the Task Force added “substantially” to emphasize as it did it Section II. D. that a parenting plan that is in the best interest of the child is the first step in determining a child support order. The inclusion of “substantially” provides a parameter with the goal of reducing acrimony and litigation between parents regarding the interaction of the parenting plan and the amount of the child support order. 90 Case Name ------Date Prepared Docket Number ------Name of Preparer ------CHILD SUPPORT GUIDELINES WORKSHEET All dollar amounts are weekly. Round all numbers to the nearest whole dollar or percentage. 1. AGE, NUMBER, AND PARENTING OF CHILDREN a. Number of children who may be eligible to be covered by this order I Reset Form I b. Check the box that applies to the children listed in 1 (a) (check one box only): The parents share financial responsibility and parenting tim e approximately equally (shared) Box 1 The children primarily reside with one parent forapproximately 2/3 of the time □ Box 2 □ I here is more than one child covered I.Jythe order and each µarenl provides Box 3 a primary residence for at least one child (split) □
c. Enter each parent's name Pa�pt A
Enter the number and age of children for whom each parent may be eligible to receive support
d. Number of children under age 18 e. Number of children 18 years or older
f. Total number of children
2. INCOME a. Gross weekly income b. Minus Child care cost paid c. Minus Health care cost paid d. Minus Dental/vision insurance cost paid e. Minus Other support obligations paid f. Available income
g. Combined available income h. Share of combined available income 3. GROSS SUPPORT AMOUNTS a. Applicable available income b. Support amount for one child
c. Adjustment for the number of children in 1 (f) X X d. Combined support amount 4. ADJUSTMENT FOR CHILDREN 18 YEARS OR OLDER a. Adjustment percentage for the ages of the children listed in 1 (d) and 1 (e) b. Adjustment for children 18 years or older c. Adjusted combined support amount
UD 304 (6/1 5/18) CSG ■·llMAAl@·l·lM41iiidM·ll'iiMMJ!i\tiil�91 Case Name Docket No. Parent A Parent B
S. PROPORTIONAL SUPPORT AMOUNTS a. Minus Each parent's share of support
b. Other parent's share of support
c. Support as% of each parent's available income
d. Other parent's adjusted share of support
e. Recipient and Payor
f. Payor's net share of support 6. ADJUSTMENT FOR CHILD CARE AND HEALTH CARE COSTS a. Child care and health care cost paid
b. Payor's share of Recipient's cost
c. Minus Recipient's share of Payor's cost
d. Payor's net cost e. Maximum adjustment amount +1-I.______, Adjustment applied to this order f. g.
h. Payor"s adjusted net share of support 7. PAYOR'S NET SUPPORT OBLIGATION a. Support as% of Recipient's available income
b. Payor's final support obligation
Payorpays Rec,p,enr
8. ADDITIONAL INCOME ABOVE $4,808 a. Combined additional income
b. Share of combined additional income
TABLE A: CHILD SUPPORT OBLIGATION SCHEDULE TABLED: TABLEC: All do/fur amou11t; a,e wei!klyand rounded to the nemest do/lw ADJUSTMENT FOR ADJUSTMENT FOR CHILDREN 18 YEARS OR OLDER M1nlrnu111INl,QM� rnoM L(N� 21<1! NUMBER OF CHILDREN MdKirnucn LHllU WPPUHI AMUUN I l I (Jilli)) $25 per week, unl�ss the court deviates CHILDREN 18 OR OLDER $0 $115 NUMli�R ADJUSTMENf CHILDREN OFCHIIUR�N FAClOR 0 3 4 5 $116 ➔ $750 22% UNDER 18 1 2 0 0.00 0 0% 2S% 25% 25% 25% 25% $1250 $165 + 21% above $750 $751 1 5% 9% 9% ➔ above 1.00 0% 8% $1251 $2000 $270 + 19% $1250 2 1.25 2 0% 3'}� 4% 4% ➔ above $2001 $3000 $413 + 15% $2000 3 1.38 3 O�'o 1% 2%, ➔ above $3001 $4000 $563 + 12% $3000 4 1.45 4 0% 1% ➔ above $4001 $4808 $683 + 11% $4000 5 1.48 5 0% CJD 304 (6/15/18) CSG NOTES 92
www.mwi.org THE PRACTICE OF DIVORCE MEDIATION 1
THE INITIAL INTAKE AND MEDIATION PROCESS
The First Call
Caller’s goals: . Obtain information about mediation . Obtain legal advice about divorce, custody, etc.
Your goals: . Provide information about mediation . Offer an initial consultation session and/or . Screen for appropriateness of mediation . Establish rapport so that the parties will schedule an initial consultation session . Effective marketing
Provide to . Introduction letter or email potential . Information about the mediation process clients: . Frequently Asked Questions sheet . Information about the mediator
The first call is usually received from one of the parties who are exploring the mediation option. Often, the option to mediate has not yet been discussed with the spouse. At this point, the goal is to provide the caller with information about mediation, possibly offer an initial consultation session, and send informational material to use in making this decision. Many callers will be seeking legal advice at this point, with common questions including: living arrangements (e.g., can I make him leave the house?) and financial protection (e.g., can I take all the money out of the joint bank accounts?) It is important to clarify the role of the mediator in the face of questions such as these.
Some mediators handle these issues by having an assistant inform the caller that these concerns can be addressed at the initial session.
Effective Marketing
The initial contact provides you with your best opportunity to obtain business. If you do not provide the information and type of presentation expected at this stage (as outlined above), you are not likely to progress to the next stage. Marketing consists of several elements: presentation of self, professionalism, promotional materials, responsiveness to needs, and speed of response, among others.
Providing informational materials
Every mediator should have a basic, professional-looking information packet and standard letter(s) that can be placed in the mail or emailed the same day the call was received.
www.mwi.org THE PRACTICE OF DIVORCE MEDIATION 2
MEDIATION INTAKE FORM
Please type or print the following information. Use additional sheets if necessary.
Date: _____/_____/_____
Contacted By:______Phone: ______
Referred By: ______Phone: ______
Fee Quoted: ______
PARTY INFORMATION
FULL NAME DOB
HOME ADDRESS STREET APT
HOME ADDRESS CITY STATE ZIP
TELEPHONE FAX
HOME EMAIL ED.LEVEL
JOB TITLE SALARY
EMPLOYER NAME SINCE
EMPLOYER ADDRESS
EMPLOYER ADDRESS CITY STATE ZIP
TELEPHONE FAX
WORK EMAIL
ATTORNEY NAME
FIRM NAME
ATTORNEY ADDRESS STREET SUITE
ATTORNEY ADDRESS CITY STATE ZIP
TELEPHONE FAX
OTHER INFORMATION
www.mwi.org THE PRACTICE OF DIVORCE MEDIATION 3
MEDIATION INTAKE FORM
Please type or print the following information. Use additional sheets if necessary.
PARTY INFORMATION
FULL NAME DOB
HOME ADDRESS STREET APT
HOME ADDRESS CITY STATE ZIP
TELEPHONE FAX
HOME EMAIL ED.LEVEL
JOB TITLE SALARY
EMPLOYER NAME SINCE
EMPLOYER ADDRESS
EMPLOYER ADDRESS CITY STATE ZIP
TELEPHONE FAX
WORK EMAIL
ATTORNEY NAME
FIRM NAME
ATTORNEY ADDRESS STREET SUITE
ATTORNEY ADDRESS CITY STATE ZIP
TELEPHONE FAX
OTHER INFORMATION
www.mwi.org THE PRACTICE OF DIVORCE MEDIATION 4
MEDIATION INTAKE FORM
Please type or print the following information. Use additional sheets if necessary.
CHILDREN OF THIS MARRIAGE
NAME DATE OF BIRTH LIVING WITH
CHILDREN OF PREVIOUS MARRIAGE - WIFE
NAME DATE OF BIRTH LIVING WITH
CHILDREN OF PREVIOUS MARRIAGE - HUSBAND
NAME DATE OF BIRTH LIVING WITH
MARRIAGE HISTORY
LIVING TOGETHER NOW? YES NO
IF NOT, DATE OF SEPARATION
IF YES, DATE OF INTENDED SEPARATION
WHO INITIATED SEPARATION/DIVORCE?
DATE OF MARRIAGE
PLACE OF MARRIAGE
OTHER INFORMATION
www.mwi.org THE PRACTICE OF DIVORCE MEDIATION 5
The Initial Face-to-Face Consultation Session With the Couple
Couple’s goals: . Obtain information about mediation . Obtain legal advice about divorce, custody, etc. . Determine if mediation is appropriate for them . Determine if they are comfortable with the mediator
Your goals: . Screen for appropriateness of mediation . Provide information about mediation . Obtain commitment to the process . Establish principles of the process . Establish rapport with and confidence of the parties
Provide to . Agreement to Mediate potential . Fee Agreement clients: . Literature about the mediation process . Literature about divorce (including a reading list) . Biography or resume of the mediator(s)
The initial contact allows both you and the parties to assess whether mediation makes sense and that you are the right mediator for the job.
The consultation session often requires you to use your mediation skills to assist the parties in handling initial decisions. Such decisions include choosing whether to use mediation, scheduling of sessions, immediate needs of children and financial arrangements, and other emergent issues.
Mediator’s Agenda for the Initial Consultation Session
1. Screen for appropriateness of mediation
The initial consultation session allows you to assess the appropriateness of mediation for the couple. Mediation may be appropriate under the following circumstances:
. Both parties are willing to participate and abide by the rules of the process (full disclosure, etc.) . Both parties are capable of informed decision making . Both parties are free of coercion . If power imbalances exist, they can be compensated for during the mediation process
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2. Provide information to the parties about mediation, the role of lawyers in the mediation process, costs, etc.
. Attorney review of proposals for settlement and final Memorandum of Understanding . Attorney drafting of final legal documents
3. Explain the mediation process
. Confidentiality . Voluntariness: Either party or the mediator may choose to terminate at any time . Requirement of full disclosure about finances . Number and length of mediation sessions . Time frame for completion of mediation . Use of outside experts/advisors, as necessary . Fees . Homework expected of the parties
4. Review the issues to be addressed
. Custody . Child support . Parenting issues . Spousal support . Division of personal property . Division of assets . Division of debts . Business valuation . Tax planning
5. Provide information about the background and experience of the mediator
. Provide information about your background and experience, if not previously provided or if it needs to be covered again
6. Begin to explore interests and issues
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Sample mediator questions and statements at the beginning of the mediation process:
. Explain limits of confidentiality at this stage and after an agreement to mediate is signed
. Tell me a little bit about your situation.
. So what would you like to accomplish by using mediation?
. Explain fees.
. How are the children doing?
. Should you choose to do a domestic violence screening, there are a few questions recommended by the Association for Conflict Resolution that a mediator can ask during the initial screening, which is done separately with each party.
. Have either of you ever pushed or shoved the other? . What about yelling or threats? . Would you feel comfortable sitting in a room with your spouse and saying, “No, I don’t like that idea?” . What role has alcohol and drugs played in your families? . What about emotional difficulties or mental illness in your families? . What else do you think is important for me to know about your situation? . Do you have any concerns about the children?
. What information have you given to me that you want me to keep confidential?
. Let me tell you a bit about mediation to help us decide whether it’s appropriate for your situation.
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Sample Explanation of Mediation to Use With Couples
Mediation is a process that allows you to work together to decide how you want to handle the decisions that need to be made in order to [get divorced, separate, etc.] In order to get a divorce, a judge or court must approve any agreement you make. If you aren’t able to make decisions together, the court will decide them for you.
My job is to help you come up with your own agreement that you both believe is as fair as it can be under the circumstance, that you’ve worked together to construct, and that makes sense for both of you [and for the children.] The issues that we will cover include decisions about property distribution, parenting arrangements, and financial issues, as well as any other issues that we agree make sense for you to talk about in mediation. My job is to assist you in exploring all of the decisions that you need to make and to help you share the information necessary to make informed decisions. (If you are an attorney, you may add the following: Since attorneys are not permitted to represent two people in a dispute, I can act only as a mediator for you.)
In order to make sure that your individual interests are protected as part of the divorce process, you should have an attorney representing each of you. Each of your attorneys should review your situation with you and be prepared to advise you on the legal consequences of your decisions. When you come to agreement about decisions, the attorney should review this. At the end of the process, if you have come to agreement about all of the decisions that you need to make in order to obtain a divorce, I will provide you with a document to take to your attorneys for final review. They will then put the decisions that you made into legal language and in a form that you will file with the court.
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Screening for Appropriateness of Mediation Scenarios In the following scenarios, determine if you believe that mediation is either 1) appropriate, 2) inappropriate, or 3) you need more information before making a determination:
1. During the initial consultation session, Emily frequently appears to lose track of what she is saying and can’t remember your name. Joseph, her husband of 34 years, tells you that Emily was recently in a car accident that left her mildly brain damaged. Joseph is seeking a divorce because of this and a friend recommended mediation.
appropriate inappropriate need more information
2. George and Kate have been married for 3 years. Shortly after their marriage, Kate discovered that George had a significant history of mental illness, with several hospitalizations for a diagnosis of paranoid schizophrenia more than five years ago. Although George has not had a relapse since their marriage and is continuing to receive treatment, including daily medication, Kate wants a divorce. George appears to be perfectly normal to you.
appropriate inappropriate need more information
3. Missy appears at the initial consultation session under the influence of alcohol. Andy tells you that Missy is a heavy drinker and he wants custody of the children. His lawyer recommended mediation. Missy does not have a lawyer.
appropriate inappropriate need more information
4. Ellen tells you that she is seeking a divorce because her husband has recently been indicted for embezzlement. She believes that Hank has been stealing from his law firm for years. His law firm has discovered that he has been wiring money out of the country. Hank insisted on mediation.
appropriate inappropriate need more information
5. Tom’s family is quite wealthy. Suzanne is from a very poor background. After having twins, Tom became extremely jealous of the time Suzanne was spending with them, and began to follow her everywhere she went. He quit his job to stay home and watch her constantly, and began accusing her of having affairs, even though she was never out of his sight. Suzanne spoke to Tom’s parents about the problem. They admitted that Tom had problems that had required psychiatric hospitalization in the past. They offered Suzanne $250,000 to give them custody of the twins. They have hired the best divorce lawyer in the state for Tom. Suzanne has no money of her own and is relying on a friend, who is a recent law school graduate, to help her with this. Tom’s parents told her she had to go to mediation to work out a settlement. Tom’s parents also told her that they would fight her for custody of the children unless she renounces all claims to Tom’s money (approximately $5,000,000 in a trust fund). There was no pre-nuptial agreement.
appropriate inappropriate need more information
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Mediator’s Opening 1) Welcome and Introduction of parties and mediators a. Welcome parties b. Introduce mediators c. Use of first names ok? 2) Explain Process a. Mediation is an opportunity for both of you to discuss and address the issues that are important to you and required to obtain a divorce. b. You are the decision makers in this process and the mediators cannot impose any decisions regarding the disputed issues. c. Mediator services shall not be construed as legal advice, financial advice, therapy or any professional service other than mediation. Clients may seek expert advice at any time during the mediation. The mediators have advised each of us to have separate, independent counsel review any agreement reached in mediation before signing it. 3) Voluntary a. Voluntary for clients and mediators. If you feel at any point that you would not like to continue, please let us know. If the reason for your wanting to stop the mediation cannot be remedied, then the mediation will end. 4) Confidential a. The mediators cannot be called to testify on behalf of either party in court MGL 233, 23C. b. The mediators will keep the details of this case and all related documents confidential. c. The mediator reserves the right to disclose suspected abuse and plans to commit a crime to the proper authorities. 5) Structure of the Mediation a. Joint sessions b. Mediator’s Caucus c. Private Sessions 6) Discuss note taking for mediator and parties 7) Agreement a. Determined by clients, drafted by mediator and/or attorney 8) Questions 9) Review Agreement to Participate in Mediation form and have clients, mediators and observers sign it 10) Review Fee Agreement and have clients sign it
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Mini Opening Checklist
Start each mediation session, after the first one with a “mini-opening.” Briefly remind parties of the process’s most important characteristics, including:
1) Agreement to Participate: first session form still applies
2) Confidentiality
3) Role of Mediators
4) Mediation Process: same as before, establish time for session
5) Ground Rules: if parties created any, last session’s still applies?
6) Questions
7) Have clients set the agenda for the session
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AGREEMENT TO PARTICIPATE IN MEDIATION
We are requesting divorce mediation services from MWI and understand and agree to the following terms:
1. We are the decision makers in this process and the mediator cannot impose any decisions regarding the disputed issues.
2. Mediator services shall not be construed as legal advice, financial advice, therapy or any professional service other than mediation. Either of us may seek expert advice at any time during the mediation. The mediator has advised each of us to have separate, independent counsel review any agreement before we sign it.
3. Mediation is a voluntary process. The mediator or we may choose to end the process at any time.
4. We must disclose all of our financial worth, assets and liabilities during the mediation process. We each accept full responsibility for the reasonable accuracy of the figures disclosed and understand that agreements reached will be based in part on these figures.
5. We understand that mediation is a confidential process under Massachusetts General Law Chapter 233, Section 23C and that MWI and its mediators will keep the details of our case and all related documents confidential. However, we understand the mediator and MWI reserve the right to disclose suspected abuse and/or crime to the proper authorities.
6. The mediator or MWI can set forth any agreement reached in mediation in a Memorandum of Understanding, Separation Agreement or other written document upon our request.
Signed by the parties:
Sign Name: ______Date: ______
Print Name: ______
Sign Name: ______Date: ______
Print Name: ______
and signed by the mediators:
Sign Name: ______Date: ______
Sign Name: ______Date: ______
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DIVORCE MEDIATION FEE AGREEMENT
We, the below signed parties, understand and agree to the following:
1. We will pay a total of $350 per hour for mediation services.
2. Payment for services is due at the end of each mediation session by cash, check or credit card.
3. MWI schedules two hour sessions. If the full time is not used we understand that MWI will only charge us for actual time used.
4. If we cancel a mediation session with less than 24 hours notice, or one of us does not attend a scheduled session, we will pay a fee of two hours of time.
5. If we reschedule a mediation session with less than 48 hours notice, we will pay a fee of one hour of time before a next session will be scheduled.
6. The same hourly rate listed above applies to additional services that might be provided outside of mediation sessions, including:
a. Phone calls and emails with the mediator; b. Preparation of written materials such as progress summaries and draft agreements; c. The drafting of the Memorandum of Understanding and/or the Separation Agreement.
7. We will pay for documents in full before they are released to us by MWI.
8. We give permission for MWI to charge our credit card for mediation services as described above, unless we have paid by cash or check.
9. MWI will not provide additional mediation services until all late fees and associated balances are paid in full.
10. A late fee of 18% of the outstanding balance will be added to the total amount due if payment is not received within 30 days after services are rendered or documents are drafted.
Sign Name: ______Date: ______
Print Name: ______
CC ______CC# ______exp. date______(Visa, MasterCard, Discover, Amex)
Sign Name: ______Date: ______
Print Name: ______
CC ______CC# ______exp. date______(Visa, MasterCard, Discover, Amex)
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TOPICS CHECKLIST
Children
Custody Parenting Plan, including weekly schedule, vacations and holidays Traveling Moving Relationships with relatives Religion Emergency Care
Support (Child and/or Spouse/Partner)
How much? How often? How paid? How long? Tax Consequences Future Adjustments
Education
Day Care Private or Parochial School College Graduate School Activities and Lessons Camp Making Decisions Paying for It
Insurance
Medical and Dental Life Insurance Uninsured Medical and Dental Expenses
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Taxes
Pending Refunds Pending Liabilities Child Tax Credit
Property Division
Home: Buy out, sell or keep Other Assets: Personal Effects, Household Goods, Inheritances, Cars, Land, etc. Savings and Mutual Funds Accounts Retirement Benefits Debt (Credit Cards, Loans, etc.) Timing of Transfers
Other
Mediation Clause Date and Location of Marriage Date of Breakdown Legal names now and after the divorce Birthdates, ages Employment Information Current Address Phone and Email Parent Education Program Filing Fee Merge or Survive Pets
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Use of Adjunct Professional Services in Mediation
The mediator should be familiar with the need for consultation with and/or referral to other professionals during the mediation process. Other professionals with whom mediators often interact include:
. Therapists
. Attorneys
. Accountants and tax advisors
. Certified Divorce Financial Analysts
. Financial planners
. Business valuators
. Coaches
. Mortgage Bankers The issue of confidentiality must be considered with each interaction. The participants in the mediation may request, or you may advise, that you speak directly to other professionals during the course of the mediation. This permission should be in writing to protect everyone in the process. The use of external professionals who can provide objective criteria and information for use by the participants in their decision making process is critical, especially with more complex financial and parental issues. Developing a network of such professionals is important, as is the need to educate those who are new to mediation. Remember your role in the mediation process. It is not to provide the advice of other professionals but to facilitate information gathering and informed decision making.
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Lawyers and Drafting of Legal Documents
Each party should, ideally, be represented by their own lawyer who reviews the memorandum of understanding and prepares the final legal documents for filing with the court. It is the mediator’s responsibility to recommend and encourage independent legal review and counsel. Some attorneys are now very experienced in working with clients who are in mediation and offer services that work well with the mediation process. The mediator should cultivate several attorneys who are familiar with mediation, comfortable with their role in the practice, and who would be willing to accept referrals from the mediator when clients do not have attorneys. The mediator may provide clients with a list of attorneys, refer them to the local bar association lawyer referral service, and suggest that they obtain recommendations from friends and relatives who have been divorced. Many couples wish to avoid the cost of attorneys. Some have been known to add their own signature lines to the Memorandum of Understanding and submit this to the court. The mediator should be aware of these issues and be prepared to address them with the clients.
The mediator should not draft the final legal documents for filing in court. This is unethical and leads to the possibility of being accused of either:
1) Dual representation; Conflict of interest for attorneys, or
2) Unauthorized practice of law (UPL) for mediators who are not attorneys
See section 5 page 85 for more information.
However, see section 5, Massachusetts Bar Association - Opinion No. 85-3. The Opinion mentions “… An attorney (acting as a mediator) may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation...”
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FINANCIAL ISSUES 1
PROPERTY DISTRIBUTION
Massachusetts is an "equitable distribution" state. The court may divide all of the spouse's property, including any gifts and inheritances, based on the following factors: (1) the contribution of each spouse to the acquisition, preservation, or appreciation in value of the property, including the contribution of each spouse as homemaker; (2) the length of the marriage; (3) the age and health of the spouses; (4) the occupation of the spouses; (5) the amount and sources of income of the spouses; (6) the vocational skills of the spouses; (7) the employability of the spouses; (8) the liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income; (9) the conduct of the parties during the marriage (if the grounds for divorce are fault‐based); and (10) any health insurance coverage. Fault is not a factor if the grounds for the divorce are irretrievable breakdown of the marriage filed in conjunction with a separation/settlement agreement. [Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 34].
SPOUSAL SUPPORT (ALIMONY)
An Act Reforming Alimony in The Commonwealth was signed by Governor Deval Patrick on September 26, 2011. Chapter 124 of the Acts of 2011.
Alimony Reform Law Summary ‐ Effective March 2012
1. Alimony Term Limits ‐ Long term marriages (more than 20 years): Alimony will end at retirement age as defined by the Social Security Act. ‐ 5 years or less: Maximum Alimony term is 50% of the number of months of marriage. ‐ 10 years or less but greater than 5 years: Maximum Alimony term is 60% of the number of months of marriage. ‐ 15 years or less but greater than 10 years: Maximum Alimony term is 70% of the number of months of marriage. ‐ 20 years or less but greater than 15 years: Maximum Alimony term is 80% of the number of months of marriage. ‐ Other term limits apply for "Rehabilitative Alimony, "Reimbursement Alimony", and "Transitional Alimony".
2. Second Wife's (Husband's) Income and Assets Excluded "In the event of the payer’s remarriage, income and assets of the payer’s spouse shall not be considered in a re‐determination of alimony in a modification action."
3. Co‐Habitation Suspends, Reduces, or Terminates Alimony "General Term Alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payer shows that the recipient has
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FINANCIAL ISSUES 2
maintained a common household with another person for a continuous period of at least three months."
4. Child Support: Gross Income is Excluded From Alimony For purposes of setting an alimony order, the court shall exclude from its income calculation gross income which the court has already considered for setting a child support order..."
5. Child Support: Alimony Term is Co‐Terminus with Child Support "Where the Court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony duration available at the time of divorce; or (ii) rehabilitative alimony commencing upon the termination of child support. "
6. Alimony Amount is Limited "... the amount of alimony should generally not exceed the recipient’s need or 30 percent to 35 percent of the difference between the parties gross incomes established at the time of the order being issued."
7. A Second Job or Overtime Income is Not Included in Alimony Modification "Income from a second job or overtime work shall be presumed immaterial to alimony modification if: (1) A party works more than a single full‐time equivalent position; and (2) The second job or overtime commenced after entry of the initial order."
8. Payment of Health Insurance and/or Life Insurance Reduces Alimony Payment In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for General Term Alimony and Rehabilitative Alimony upon written findings that deviation is necessary. Grounds for deviation may include: (3) Whether the payer spouse is providing health insurance and the cost of health insurance for the recipient spouse; (4) Whether the payer spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
9. Alimony Term Extensions Are Limited And Require Clear And Convincing Evidence "The court may grant a recipient an extension of an existing alimony order for good cause shown. In granting extension, the court must enter written findings of: (i) A material change of circumstance that occurred after entry of the alimony judgment; and (ii) Reasons for the extension that are supported by clear and convincing evidence.
10. Alimony Ends with the Remarriage of the Alimony Recipient
Information from http://www.massalimonyreform.org/
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FINANCIAL ISSUES 3
PROPERTY DIVISION AND ALIMONY
1.Overview
Parties determine property division by looking at all things the couple owns and owes, and then by deciding who should get what.
Spousal support, also called alimony or maintenance, is money or other assets one spouse provides to the other. Massachusetts laws typically use the term alimony. In general, judges determine alimony first by looking at each spouse's future needs and resources, and then by deciding if one spouse should pay money to support the other. If parties decide that there should be alimony, they will discuss the amount and timing of payment. Judges may allow parties to label alimony as money intended for support of children.
Property division and spousal support do not have to be discussed at the same time during a mediation. Massachusetts law, however, provides the same statute, Massachusetts General Laws, Chapter 208, Section 34, to guide judges in making decisions in both areas. Not all judges give the same weight to each consideration described in the statute.
Property divisions cannot be changed. Unless the division is based on fraud, duress or misrepresentation, judges probably will not allow changes to the property division in the future. In other words, the division stays the same unless the original agreement was involuntary or based on lies or inaccurate information.
Alimony can be changed. If there is significant change in circumstances, such as an unexpected inheritance, a large raise, or job loss, a judge probably will allow changes to alimony. An agreement can be written so some changes happen automatically. For example, the agreement could say that after three years, payments shall stop.
Property division affects taxes because the spouse getting a piece of property will pay the taxes on that property unless the parties agree otherwise. Transfers of property from one spouse to the other made in connection with a divorce are not taxed as income.
Alimony affects taxes because the Government taxes as income the payments a spouse receives. The person who pays spousal support can deduct it from his or her gross income.
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FINANCIAL ISSUES 4
2. Factors Judges Consider
The following discussion describes the factors, as identified in Massachusetts law, that 1 judges consider when making decisions about alimony and property division.
a) Judges must consider the following 15 factors:
1) Length of the Marriage. Some judges believe longer marriages call for more equal property divisions; they might consider marriages lasting less than 4 years as short, 4‐9 years as intermediate, and over 9 years as long.
2) Conduct of the Parties During Marriage. Although considered if it occurred during the marriage, judges cannot base decisions solely on a spouse's fault, infidelity, or misconduct (including misuse of money).
3) Age of the Parties. Judges might consider how likely it will be for a spouse of a certain age to reenter the work force. For example, if a judge thinks a 40 year‐old woman with no education will have a hard time finding a job, the judge may want to give her more spousal support. Similarly, if the judge thinks she will be able to find work after a period of education, the judge may want to give her enough property to cover her expenses until she finishes school.
4) Health of the Parties. This factor may include both the physical and mental condition of the parties, and depends on how it affects a spouse's ability to make money. For example, if a judge believes a wife’s bad back will keep her from working temporarily, the husband may have to pay temporary support until she can work again. In another example, if the judge believes clinical depression will keep a husband from ever finding a job, the judge may increase his share of the property.
5) Station of the Parties. Station refers to the style of living each party had during the marriage. Some judges believe that the parties after divorce should have a standard of living as similar as possible to the one existing during the marriage.
6) Occupation of the Parties. Some judges compare the parties' status and salaries. A judge might increase alimony and/or property for a spouse who has less prestige or a lower salary.
7) Amount of the Income of the Parties. A significant difference between the amount of money each spouse makes might lead a judge to give more alimony and/or property to the spouse with the smaller income.
1 See Sanford N. Katz, "Equitable Distribution in Massachusetts," Massachusetts Family Law Journal (July 1988); see also Hon. Ernest Rotenberg and Paul Kane, "Alimony and Division of Property," Massachusetts Domestic Relations, c. 15 (1992).
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FINANCIAL ISSUES 5
8) Sources of Income of the Parties. Judges must consider everything that gives money to the parties, including salary, pensions, bank account interest, etc. Parties must provide accurate financial data. Spouses must not try to avoid alimony obligations by hiding sources of income, wasting assets, or intentionally reducing earnings.
9) Vocational Skills of the Parties. A vocational skill is an ability that may help in getting or holding down a job. Fewer such skills may mean more alimony or property.
10) Employability of the Parties. Employability refers to how likely it will be for one spouse to find or keep a job after the divorce. Employability depends on opportunities for work based on a party's skills, education, past and current work experience, the current job market, company needs, health and age. A judge might give more to a spouse who has little chance of employment.
11) Estate of the Parties. A party's estate includes all the things a party owns. The estate is the property that the judge considers when dividing things up. Property a spouse had before the marriage might be included in the estate. For example, even if a husband bought a car long before he met his wife, a judge does have the power to give the car to the wife.
12) Liabilities of the Parties. Liabilities are debts and other obligations owed. Just like property, liabilities can be divided between the spouses. A judge may give more assets to a party who has debts, or let a party with debts pay less alimony.
13) Needs of Each of the Parties. Parties' needs are what they require to maintain the standard of living they had during the marriage. Among other factors, a judge might look at health or age to determine a party's needs.
14) Opportunity for Future Acquisition of Capital Assets and Income. A judge may take into account a party's prospects for the future, including actual money earned and future earning potential. For example, a spouse expecting to inherit money in the near future might receive less alimony or property from the judge.
15) Present and Future Needs of the Children. Judges must consider the present and future needs of any children involved. For example, a station wagon might be given to the parent who will live with the children.
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FINANCIAL ISSUES 6
b) Judges may consider the contribution of each party in:
1. Acquiring or obtaining a particular piece of property;
2. Preserving or maintaining a piece of property;
3. Appreciation in Value or increase in worth of property; and
4. Maintaining of the Home and Family Unit or homemaking (judges often consider homemaking responsibilities as important as earning money).
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FINANCIAL ISSUES 7
FINANCIAL FORMS
Overview. Parties fill out financial forms to facilitate sharing financial information, to develop a complete and accurate understanding of family finances, and to prepare for filing in court. Parties cannot make informed, long‐lasting decisions that maximize chances for meeting their interests unless both parties fully understand their joint financial situation.
Massachusetts Probate and Family Court Departments require parties to fill out and submit the Financial Statement. Mediators often provide additional forms, such as a Detailed Monthly Budget Form, to help parties develop a complete picture of their financial situation.
The remainder of this section includes the following documents:
1. Financial Documents listing paperwork used to complete financial forms;
2. Filling Out Financial Statements provides information on how to fill out the form but like all information in this manual, should not be construed as legal advice;
3. Financial Statement (short form)
4. Financial Statement (long form)
Financial Documents
The documents listed below might be needed to fill out the financial forms. Federal and state tax returns and schedules for the past 3 years; W‐2 and 1099 Forms for the past 3 years; Your 4 most recent pay stubs; Deeds to property owned by you and/or your spouse; Mortgage documents such as mortgage statements and tax bills; Any loan or mortgage application made/submitted in the past three years; Statements for past 3 years for pension, IRA, 401K, retirement account for you and/or your spouse, stock, bond, security, and certificates of deposit (including those held in benefit for children under 18); Statements for loans/debts, such as credit cards, in your name or your spouse’s; Statements for the past 3 years of bank accounts held by you or with another, including all accounts held by anyone for your benefit or for your children’s; Life insurance policies and related statements; Health insurance policies and related statements; and Copies of any other document related to your finances.
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FINANCIAL ISSUES 8
Filling Out Financial Statements
The following information is provided for information purposes only and should not be construed as legal advice. Please consult independent counsel for advice on completing a Financial Statement.
Information on the Financial Statement should be true as of the time you sign it (typically on or about the date of filing the form). When you sign your name on this form, you are swearing that its contents are true and complete.
All lines on the form should be filled in. If you do not know an exact number, estimate. Write “none” if a line does not apply to you. Write “0” if amounts are zero. The numbers below refer to sections on the Financial Statement.
1) Fill in basic information about you as completely as possible. A recent pay stub or last year’s tax forms may be helpful.
2) Fill in information about your income, the money you receive from working, AFDC, tips, child support, or any other source. Fill in your weekly gross income, the amount before taxes are taken out. If you get paid every two weeks, divide your gross income by 2.15. For example, if every two weeks you get $200 before taxes, then divide by 2.15 and fill in a gross weekly income of $93.02. If you get paid every month, divide your gross income by 4.3. For example, if every month you get $427 before taxes, then divide by 4.3 and fill in a gross weekly income of $99.30. Add up the numbers on lines 2a through 2k. Write the total on line 2l.
3) Fill in information about money taken out or deducted from your income. If taxes are deducted from your paycheck, look at your pay stub for this information. If amounts are not weekly, divide by 2.15 or 4.3 as in Section 2.
Add up the numbers on lines 3a through 3e. Write the total on line 3f.
4) Fill in the amount of money you have left after deductions by subtracting the number on line 3f from the number on line 2l. Write the total in section 4.
5) Fill in other amounts of money taken out of your income. If amounts are not weekly, divide by 2.15 or 4.3 as in Sections 2. Add up the numbers on lines 5a through 5d. Write the total on line 5e.
6) Fill in your “net” weekly income, the money you get after all deductions by subtracting the number on line 5e from the number in Section 4. Write the total in Section 6.
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FINANCIAL ISSUES 9
7) Fill in the total amount (not the weekly amount) of money you received last year from all sources before taxes. If you filed taxes last year, use the “gross yearly income” amount on your tax form. Otherwise, estimate as accurately as you can.
8) Fill in the weekly amounts you spend regularly. If amounts are not weekly, divide by 2.15 or 4.3 as in Sections 2. Write “0” if a line does not apply to you. If you do not know an exact amount, estimate as accurately as possible. Look through old bills to see how much money you spend on things. Use line 8s for expenses not listed, like transportation. Add up the numbers on lines 8a through 8s. Write the total on the line that says "Total Weekly Expenses."
9) Fill in amounts you have or will pay an attorney for working on this case. Write “0” if you have no legal fees.
10) List valuable things that you own (“assets”) and their value. Write “0” on lines that do not apply to you. Two examples for filling out 10e follow: Cambridge Saving – Checking BankBoston – Savings: joint account with John Doe for benefit of Jane Doe.
Line 10f asks for information about automobiles. If you have a vehicle, fill in the brand, model and year next to the words “Motor Vehicles.” Fill in an estimate of how much you could sell it for after the words "Fair Market Value." If there is a loan for the vehicle, fill in any amount you still owe after the words "Auto Loan." Subtract the loan amount from the fair market value. Write the total on the line to the right of the word "Equity." Add up the numbers on lines 10a through 10g. Write the total on line 10h.
11) List amounts of money you owe ("debts" or "liabilities").
Under "Creditor," fill in the name of the place or person you owe, such as "Macy’s" or “John Doe.” Under "Nature of Debt," fill in what you owe the money for, such as "dishes" or “education.” Under “Date of Origin," fill in the date that payment was first due. Under "Amount Due," fill in how much you owe.
If you are paying the debt off in installments, fill in the amount you pay each week under "Weekly Payment." If the amount is not weekly, divide by 2.15 or 4.3 as in Section 2. Use extra pieces of paper if you need more space to list your debts.
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FINANCIAL ISSUES 10
Add up the numbers under "Amount Due." Write the total on the first blank on line 11e. Add up the numbers under "Weekly Payment." Write the total on the second blank on line 11e.
12) Fill in the number of years, if any, that you have had money taken out of your paycheck for Social Security. Read the two sentences under line 12, then date and sign the form. If you have an attorney, he or she should fill out the bottom. If you do not have an attorney, write "Pro Se" next to the words "Attorney’s Signature" and then write your address and phone number on the lines at the bottom of the page.
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FINANCIAL ISSUES 11
Financial Statement Short Form Instructions
Use these instructions ONLY if: A. You are the Plaintiff, Defendant or Petitioner in a Divorce, Separate Support, Paternity, Modification or Contempt case or any other case involving alimony, child support or division of property;
and
B. Your gross yearly income (before taxes and other deductions) is less than $75,000.
—› You must complete the Long Form Financial Statement if your gross yearly income is more than $75,000.
—› If you work for yourself, you must also complete Schedule A.
—› If you own any rental property, you must also complete Schedule B.
As information is inserted on the Financial Statement, it self‐calculates for your convenience.
IMPORTANT —› The Financial Statement is one of the most important papers that you file with the Court. The judge will make important decisions based on the information that you write down.
—› Fill out the form completely and truthfully. Your signature indicates that the information you provide is true to the best of your knowledge. Since you are signing under the penalties of perjury, untrue statements can lead to criminal prosecution.
—› Each person in your case must file a completed Financial Statement within 45 days after the Plaintiff delivers the Complaint to the Defendant and at all court hearings involving alimony, child support, division of property or any other financial matters. For more information SEE Uniform Probate Court Practice XXX and Supplemental Probate Court Rule 401
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FINANCIAL ISSUES 12
Instructions for completing the FINANCIAL STATEMENT (Short Form)
Fill in every line. If you have nothing to put on a line, write in the word “NONE”. If you need more space for the information in Sections 5, 8, 10 or 11, you may attach additional sheets of paper. The staff at the Registry of Probate can give you a sample, completed Financial Statement.
1. Personal Information. If you are not currently working, write “UNEMPLOYED” in the space where the form asks for “Employer”.
2. Gross Weekly Income/ Receipts from All Sources. Your gross income should reflect all income received before deductions. You must use weekly amounts. List only your income, not the income of other people involved in the case. If you are paid monthly, divide your monthly gross income by 4.3. If you are paid every two weeks, divide your gross income from each paycheck by 2. If you are paid twice a month, divide your gross income from each paycheck by 2.15. Write “NONE” on any line for which you have no income. It is helpful if you bring to court your most recent pay stub. If you are self‐employed, bring last year’s tax return, including Schedule C and any other related forms.
3. Itemized Deductions from Gross Income. Fill in the deductions that appear on your paycheck. Use weekly amounts, dividing in the same way that you did for your gross income.
4. Adjusted Net Weekly Income. Subtract “Total Deductions” on line 3(f) from “Total Income” on line 2(r).
5. Other Deductions from Salary/Wages. Fill in any other amounts deducted from your wages.
6. Net Weekly Income. Subtract "Total Deductions" (line 5 (e)) from "Adjusted Net Weekly Income" (line 4).
7. Gross Yearly Income from Prior Year. Fill in your total income from last year before taxes or other deductions and attach copies of last year's W‐2 and 1099 form(s) showing your income.
8. Weekly Expenses. Fill in weekly amounts. Divide monthly amounts by 4.3 to get weekly amounts. Do NOT list expenses that you have listed as deductions from your pay in Section 3 or Section 5. Do include the weekly payments for any liabilities listed in Section 11. If someone else in your household pays some of the expenses, you should only write down the amount that you actually pay.
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FINANCIAL ISSUES 13
9. Counsel Fees. Write in the amounts that you have paid and that you expect to pay to an attorney. If you have an attorney, he or she can help you complete this section.
10. Assets. Fill in the present value of real estate, motor vehicles, retirement plans, life insurance, bank accounts, stocks and bonds and any other items of value you own. For savings, checking money market accounts, certificates of deposit list the name of the financial institution and the account number. You should bring to court the most recent statements for all accounts.
11. Liabilities. List all of your debts on the chart. List the creditor, the kind of debt, when you first borrowed the money (or the date that you were ordered to pay the money) and the current amount due. If your credit card “amount due” column represents multiple purchases made at different times please write “various dates” in the “date incurred” column. If you make payments on a liability, write “see weekly expenses” in “Weekly Payment” column and include the weekly amount in Section 8.
—› DO NOT FORGET TO SIGN and DATE the form. If you have a lawyer, he or she must complete the “Statement By Attorney” on the back of the form. File the original with the court. Keep one copy and mail a copy to the other person in your case. If the other person has a lawyer, mail the copy to the lawyer.
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FINANCIAL ISSUES 14
Financial Statement Long Form Instructions
Use these instructions ONLY if: A. You are the Plaintiff, Defendant or Petitioner in a Divorce, Separate Support, Paternity, Modification or Contempt case or any other case involving alimony, child support or division of property;
and
B. Your gross yearly income (before taxes and other deductions) is more than $75,000.
—› You must complete the Short Form Financial Statement if your gross yearly income is less than $75,000.
—› If you work for yourself, you must also complete Schedule A.
—› If you own any rental property, you must also complete Schedule B.
As information is inserted on the Financial Statement, it self‐calculates for your convenience.
IMPORTANT — The Financial Statement is one of the most important papers that you › file with the Court. The judge will make important decisions based on the information that you write down.
— Fill out the form completely and truthfully. Your signature indicates › that the information you provide is true to the best of your knowledge. Since you are signing under the penalties of perjury, untrue statements can lead to criminal prosecution.
— Each person in your case must file a completed Financial Statement › within 45 days after the Plaintiff delivers the Complaint to the Defendant and at all court hearings involving alimony, child support, division of property or any other financial matters. For more information SEE Uniform Probate Court Practice XXX and Supplemental Probate Court Rule 401.
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FINANCIAL ISSUES 15
Instructions for completing the FINANCIAL STATEMENT (Long Form)
Fill in every line. If you have nothing to put on a line, write in the word “NONE”. If you need more space for the information in Sections VI, VIII, or IX, you may attach additional sheets of paper. The staff at the Registry of Probate can give you a sample, completed Financial Statement.
I. Personal Information. If you are not currently working, write “UNEMPLOYED” in the space where the form asks for “Employer”.
II. Gross Weekly Income/ Receipts from All Sources. Your gross income should reflect all income received before deductions. You must use weekly amounts. List only your income, not the income of other people involved in the case. If you are paid monthly, divide your monthly gross income by 4.3. If you are paid every two weeks, divide your gross income from each paycheck by 2. If you are paid twice a month, divide your gross income from each paycheck by 2.15. Write “NONE” on any line for which you have no income. It is helpful if you bring to court your most recent pay stub. If you are self‐employed, bring last year’s tax return, including Schedule C and any other related forms.
III. Weekly Deductions from Gross Income. Fill in the deductions that appear on your paycheck. Use weekly amounts, dividing in the same way that you did for your gross income.
IV. Net Weekly Income. Subtract “Total Deductions” on line III (s) from “Total Income” on line II(r).
V. Gross Income from Prior Year. Fill in your total income from last year before taxes or other deductions and attach copies of last year’s W‐2 and 1099 form(s) showing your income.
VI. Weekly Expenses Not deducted from pay. Fill in weekly amounts. Divide monthly amounts by 4.3 to get weekly amounts. Do NOT list expenses that you have listed as deductions from your pay in Section III. Do include the weekly payments for any liabilities listed in Section IX. If someone else in your household pays some of the expenses, you should only write down the amount that you actually pay.
VII. Counsel Fees. Write in the amounts that you have paid and that you expect to pay to an attorney. If you have an attorney, he or she can help you complete this section.
VIII. Assets. Fill in the present value of real estate, motor vehicles, pensions and all other assets. For savings, checking money market accounts, certificates of deposit, stocks and bonds list the name of the financial institution and the account number. You should bring to court the most recent statements for all accounts.
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FINANCIAL ISSUES 16
IX. Liabilities. List all of your debts on the chart. List the creditor, the kind of debt, when you first borrowed the money (or the date that you were ordered to pay the money) and the current amount due. If your credit card “amount due” column represents multiple purchases made at different times please write “various dates” in the “date incurred” column. If you make payments on a liability, write “see weekly expenses” in “Weekly Payment” column and include the weekly amount in Section VI.
—› DO NOT FORGET TO SIGN and DATE the form. If you have a lawyer, he or she must complete the “Statement By Attorney” on the back of the form. File the original with the court. Keep one copy and mail a copy to the other person in your case. If the other person has a lawyer, mail the copy to the lawyer.
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FINANCIAL ISSUES 17
ASSET AND LIABILITY DIVISION WORKSHEET
For Date
ASSETS In (include institutional name & account number) Whose Amount Total Name? Savings or Interest‐Bearing Accounts
$_ $_ $_ $_ $_ $_ $_
Checking and Money Market Accounts
$_ $_ $_ $_ $_ $_ $_
Certificates of Deposit
$_ $_ $_ $_ $_ $_ $_
Stocks, Bonds, Mutual Funds
$_ $_ $_ $_ $_
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FINANCIAL ISSUES 18
$_ $_
ASSETS In (include institutional name & account number) Whose Amount Total Name? Insurance Policies (include face value and cash value)
$_ $_ $_ $_ $_ $_
Pension Plans (401K, 503B, Profit Sharing, etc.)
$_ $_ $_ $_ $_ $_
IRA, SEP, KEOUGH Accounts
$_ $_ $_ $_ $_ $_
ESOP’s & Deferred Compensation Plans
$_ $_ $_ $_ $_ $_
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FINANCIAL ISSUES 19
Other (specify)
$_ $_ $_ $_ $_
PROPERTY In (include full description) Whose Amount Total Name? Residence and Real Estate (include all real property, including vacation homes, land, etc.)
$_ $_ $_ $_ $_ $_ $_
Rental Property
$_
$_
$_
$_
$_
$_ $_
Vehicles (cars, motorcycles, boats – include year, make and mode)
$_
$_
$_
$_
$_ $_ $_
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FINANCIAL ISSUES 20
Personal (clothing, jewelry, furs, books, etc.)
$_ $_ $_ $_ $_ $_ $_
PROPERTY In (include full description) Whose Amount Total Name? Household (furnishings, antiques, etc.)
$_
$_
$_
$_
$_
$_ $_
Collectibles (coins, stamps, art, etc.)
$_ $_ $_ $_ $_ $_ $_
Other – Specify & include specially valued or insured items
$_ $_ $_ $_ $_ $_ $_ $_ $_
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FINANCIAL ISSUES 21
LIABILITIES In Whose Amount Total Name? Mortgages, Home Equity Loans, etc.
$_ $_ $_ $_ $_ $_ $_
Credit Card Debt
$_ $_ $_ $_ $_ $_ $_
Other Loans
$_ $_ $_ $_ $_ $_ $_
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FINANCIAL ISSUES 22
MONTHLY BUDGET OF EXPENSES
EXPENSE EXPENSE YOUR BASIC EXPENSES ADDITIONAL EXPENSE CATEGORY ITEM AMOUNT FOR CHILDREN* HOME Mortgage/Rent Taxes Special Assessments Repairs/Maintenance Furniture/Appliance Maint. Cleaning Services Lawn Care Pool Maintenance Exterminator Services
UTILITIES Heating Fuel Electric Gas Water Sewer Trash Removal Internet Service Telephone Cable/Satellite
TRANSPORTATION Auto. Loan Payment Gas Maintenance/Repairs Auto. Insurance Public Transportation Costs Car Pool Costs Registration/Licenses Parking Fees
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FINANCIAL ISSUES 23
EXPENSE EXPENSE YOUR BASIC EXPENSES ADDITIONAL EXPENSE CATEGORY ITEM AMOUNT FOR CHILDREN PERSONAL Grocery Dining Out Clothing Hair care Laundry/Dry Cleaning
MEDICAL Doctor bills Dentist bills Glasses/Contacts Mental Health Treatment Prescriptions
PERSONAL Membership Dues Personal Items (Drugstore) Books/Magazines Entertainment Gifts Recreation Fees Recreation Equipment Vacation Camp Fitness Club CD’s/Music Tailor Miscellaneous
EDUCATION School Tuition & Fees School Books Lessons – Music, Art, etc.
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FINANCIAL ISSUES 24
COMPUTER Equipment Supplies
EXPENSE EXPENSE YOUR BASIC EXPENSES ADDITIONAL EXPENSE CATEGORY ITEM AMOUNT FOR CHILDREN
INSURANCE Life Insurance Disability Insurance Medical Insurance Dental Insurance Homeowner’s Insurance Tenant Insurance
FINANCIAL Retirement Accounts Savings Bank Fees Debt Payment
CHILDREN Allowances Camp Child Care College Savings
PETS Food Veterinarian Grooming Registration/Taxes Boarding
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FINANCIAL ISSUES 25
QUALIFIED DOMESTIC RELATIONS ORDER (QDRO)
A QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) is a court order which instructs a pension plan to pay an Alternate Payee (a former spouse) a portion of retirement benefits accrued by a Participant due to an equitable distribution agreement in a divorce. Court orders can be drafted to assign a portion of benefits to an Alternate Payee for a variety of different types of plans. However, each type of plan has its own guidelines and methods for distributing such benefits. The attorneys for the parties will draft the QDRO as necessary.
QDRO Must Haves
There are some things every QDRO by law must have:
1. The names and addresses of the participant and the alternate payee. 2. The identity of the plan from which the benefit is to be transferred. 3. The percentage or amount of the benefit to be transferred. 4. The number of months or periods of payments.
QDRO Must Not’s
There are some things a QDRO by law must not do:
1. Call for a benefit not provided for in the plan. 2. Call for a benefit that exceeds the actuarial value of the participant's interest in the plan. 3. Provide for payment of a benefit that's already been assigned to someone else.
Lawyer Issues With QDROs
There are some things your lawyer needs to be careful about with a QDRO:
1. What happens if the participant dies before the benefit payout starts. 2. What happens if the participant dies while the benefit is being paid out. 3. What happens if the alternate payee dies before the benefit payout starts. 4. What happens if the alternate payee dies while the benefit is being paid out. 5. Does the QDRO mesh with the plan (the best way to deal with this is to read the plan document, or at least the SPD (Summary Plan Description) for the plan. 6. What happens if the participant elects early retirement?
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FINANCIAL ISSUES 26
Issues for You with QDROs
There are some things you need to be careful about too:
1. Make sure a QDRO is available. Most plans provided by private employers are subject to the ERISA requirement that they honor QDROs. This is not necessarily the case, however, with many military and government plans. Make sure you find out whether marital division is available in your plan. The best way to find out (which doesn't cost anything) is to ask the plan administrator for your plan. If the plan belongs to your spouse and not to you, you'll probably need your spouse's cooperation to get the information you need the easy way. The reason your spouse should cooperate is that you can always find out in discovery if your spouse makes you do it that way.
2. Make sure you know what the QDRO will cost. A QDRO can be simple, straightforward, and reasonably priced if it transfers an interest in a defined contribution plan maintained by a large employer in your area. A QDRO can be fiendishly challenging (and prohibitively expensive) if it transfers an interest in a defined benefit plan. Because of the expense of QDROs, the next principle flows naturally:
3. Use QDROs sparingly if at all. It's not unusual for divorcing couples to agree to "split everything down the middle, 50/50." If you and your spouse want to agree to do that, fine, but that doesn't mean you have to split every asset. Better to value all the major assets with an inventory and then use only one QDRO to balance the equation. Or better yet, see if you can't use an IRA or cash to balance the equation and avoid QDROs completely.
4. Think after‐tax values. Remember that if you need cash now or will need cash anytime soon, retirement plans may be a lousy way to get it. That's because you'll have to pay income tax at your marginal rate whenever you take the money out, and if you take your own retirement plan money out before age 59 ½, you'll have to pay an additional 10% penalty.
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FINANCIAL ISSUES 27
STANDING ORDER 3‐08
IMPOUNDMENT OF QUALIFIED DOMESTIC RELATIONS ORDERS, DOMESTIC RELATIONS ORDERS AND ORDERS COMMONLY KNOWN AS MANGIACOTTI ORDERS
Unless otherwise ordered by the court, all qualified domestic relations orders, domestic relations orders and orders issued pursuant to Contributory Retirement Board of Arlington v. Mangiacotti, 406 Mass.184, (1989) are impounded. As used herein, “impounded” shall mean the act of keeping the orders separate and unavailable for public inspection. The following procedure will be followed:
1. Upon filing with the court, the orders shall be kept separate from the case file and unavailable for public inspection. Access to inspect the impounded orders is limited to the court, the attorney(s) of record, if any, and the party(ies), unless otherwise ordered by the court.
2. In accordance with Trial Court Rule IX, Rule 2, Uniform Rules on Subpoenas to Court Officials, the Register shall not provide a copy of the impounded orders to a person who is not a party to the case.
3. Relief from impoundment may be sought by Motion supported by affidavit, and may be granted after notice by the court only upon written findings.
4. Service of the Motion for Relief from Impoundment and affidavit shall be made on all parties in accordance with Rule 5 of the Massachusetts Rules of Domestic Relations Procedure. The time periods for hearing shall be as set forth in Rule 6 of the Massachusetts Rules of Domestic Relations Procedure.
March 10, 2008 //PMC Date Paula M. Carey Chief Justice
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FINANCIAL ISSUES 28
TAX TALK
MEDIATION TRAINING Michael L. Leshin, Esq. MWI Ginsburg & Leshin, LLC One Hollis Street Wellesley, MA 02482 781‐235‐3332 [email protected]
Introduction
While tackling financial issues, seasoned mediators often remind the couple of a third
party at the table – the Internal Revenue Service. From the impact of custody arrangements on
filing status to the strictures of alimony, to the sale of a principal residence, the United States
Tax Code casts a shadow over the mediation of a divorce.
This presentation assumes no knowledge of the tax code and its provisions. To avoid
“information overload” I have not summarized those provisions of the tax code germane to
divorce. Rather, I have presented in outline form the “red flags” which you will need to discern
as you proceed through the mediation. You will then need to determine whether you are
sufficiently knowledgeable to guide the couple through the issue or whether – discretion being
the better part of valor – you suggest that the couple – individually or together – speak with
counsel and/or their accountant.
An Annotated Bibliography appears at the end of these materials. These resources
provide excellent, comprehensive descriptions and analyses of the salient provisions of the tax
code. In addition, attending continuing legal education seminars on tax issues is critical.
Organizations sponsoring such programs are: Massachusetts Continuing Legal Education, Inc.;
the Massachusetts Council on Family Mediation, Inc.; and the Family Law Sections of the Boston
Bar Association and Massachusetts Bar Association.
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FINANCIAL ISSUES 29
Filing Status
During separation, if a couple with children has been separated for more than 6 months, should they file jointly; or married filing separately and head of household; or do both qualify to file as head of household? Who should receive the Child Tax Credit.
If children are about to attend or are attending college, can either parent avail
him/herself of the American opportunity credit, lifetime learning credit, or
deductions for student loan interest – all of which tax benefits flow from the taking
of the dependency exemption?
Alimony Is it a cash payment?
Is the payment made pursuant to a writing?
Will the husband and wife be living apart once divorced?
Does the payment end on the death of the payee (recipient)?
Is the payment “fixed” as payable for the support of children? [is the alimony
payment reduced or terminated on the happening of a contingency relating to one
or more children of the payor of alimony?]
Are there annual drops of $15,000 in the first three years that create a “recapture”
problem? [IRS prohibits disguising property payments as alimony payments]
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FINANCIAL ISSUES 30
Sale of Principal Residence
Was the home purchased before, during, or after 1997?
Has the home been the principal residence of the couple for two of the past five
years?
Are both on the deed?
Has the couple rolled over any gain into this residence from a prior residence?
Is the gain in the home more than $250,000?
Does either or both spouses expect to sell the residence – now or in the future?
Interspousal Transfers
Does the couple know the basis, holding period, and deferred sales charges of any
securities either may transfer to the other?
Is the transfer of all assets related to the cessation of the marriage? Are there any
transfers occurring after six years?
Is there to be a transfer of: (a) any funds from an Individual Retirement Account or
defined contribution retirement plan; or (b) an interest in a defined benefit
retirement plan? Is a Qualified Domestic Relations Order [“QDRO”] necessary?
Innocent Spouse
Is either spouse concerned about errors or omissions on previously filed joint tax
returns?
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Miscellaneous
Could now or in the future either spouse qualify as a first‐time homebuyer such that
there would be no 10% penalty for the use of up to $10,000 from an IRA for a
downpayment?
Would the couple want to use IRA funds for payment of college education expenses
where there may be no 10% penalty on such a withdrawal?
Are there any estate tax planning objectives to be accomplished through the
transferring of funds or assets to children?
Does either spouse receive an annual gift qualifying for the annual gift tax exclusion
of $14,000 such that it is germane to considerations of child support and/or
alimony?
Does either spouse receive tax‐exempt interest and, if so, is it germane to
considerations of child support and/or alimony?
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ANNOTATED BIBLIOGRAPHY
Massachusetts Divorce Law Practice Manual and Forms, Massachusetts Continuing Legal Education, Inc. Superb four volume manual surveying all issues attendant to divorce, including taxes. Chapter 22, “Tax Considerations,” presents an excellent overview and analysis of those tax code provisions arising in divorce. It also contains helpful charts and tax forms. (800/966‐6253) [www.mcle.org]
Frumkes on Divorce Taxation, Melvyn B. Frumkes, James Publishing Incorporated. Attorney Frumkes has written an extraordinarily comprehensive analysis of tax issues in divorce – from the simplest to the most sophisticated and arcane. (800/440‐4780) [www.jamespublishing.com]
U.S. Master Tax Guide, Commerce Clearing House. An annual publication which provides a very readable explication of the entire United States Tax Code. It is a terrific resource. (800/248‐ 3248) [www.cch.com]
Massachusetts Family Sourcebook and Citator, by Michael L. Leshin and Phyllis E. Federico, Massachusetts Continuing Legal Education, Inc. An annual publication which contains all relevant family law statutes, rules and regulations, both state and Federal with updated case law notations. It includes all relevant income tax code provisions and several tax code regulations.
Publication 504: Divorce or Separated Individuals, Department of the Treasury, Internal Revenue Service. This annual publication provides an excellent summary and guide to the basic tax issues arising in a divorce – filing status, exemptions, and alimony, among other issues. To order from fax machine: 703/368‐9694. [www.irs.gov] Userid: CPM Schema: tipx Leadpct: 100% Pt. size: 10 Draft Ok to Print AH XSL/XML Fileid: … tions/P503/2020/A/XML/Cycle05/source (Init. & Date) ______Page 1 of 21 7:49 - 22-Jan-2021
The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.
33 Department of the Treasury Contents Internal Revenue Service Reminders ...... 1 Publication 503 Introduction ...... 2 Cat. No. 15004M Can You Claim the Credit? ...... 2 Who Is a Qualifying Person? ...... 3 You Must Have Earned Income ...... 4 Child and Are These Work-Related Expenses? ...... 6 What’s Your Filing Status? ...... 8 Dependent Care Provider Identification Test ...... 9 How To Figure the Credit ...... 9 Figuring Total Work-Related Expenses ...... 9 Care Expenses Earned Income Limit ...... 11 Dollar Limit ...... 12 For use in preparing Amount of Credit ...... 12 2020 Returns How To Claim the Credit ...... 13 Do You Have Household Employees? ...... 13
How To Get Tax Help ...... 16
Index ...... 20
Reminders Future developments. For the latest information about developments related to Pub. 503, such as legislation enacted after it was published, go to IRS.gov/Pub503. Personal exemption suspended. For 2020, you can’t claim a personal exemption for yourself, your spouse, or your dependents. Taxpayer identification number needed for each qualifying person. You must include on line 2 of Form 2441, Child and Dependent Care Expenses, the name and taxpayer identification number (generally, the social security number) of each qualifying person. See Taxpayer identification number under Who Is a Qualifying Person, later. You may have to pay employment taxes. If you pay someone to come to your home and care for your de- pendent or spouse, you may be a household employer who has to pay employment taxes. Usually, you aren't a household employer if the person who cares for your de- pendent or spouse does so at his or her home or place of business. See Do You Have Household Employees, later. Photographs of missing children. The IRS is a proud partner with the National Center for Missing & Exploited Children® (NCMEC). Photographs of missing children se- lected by the Center may appear in this publication on pa- ges that would otherwise be blank. You can help bring these children home by looking at the photographs and calling 1-800-THE-LOST (1-800-843-5678) if you recog- nize a child. Get forms and other information faster and easier at: • IRS.gov (English) • IRS.gov/Korean (한국어) • IRS.gov/Spanish (Español) • IRS.gov/Russian (Pусский) • IRS.gov/Chinese (中文) • IRS.gov/Vietnamese (TiếngViệt)
Jan 22, 2021 Page 2 of 21 Fileid: … tions/P503/2020/A/XML/Cycle05/source 7:49 - 22-Jan-2021
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34
Schedule H (Form 1040) Schedule H (Form 1040) Household Employment Introduction Taxes
W-10 W-10 Dependent Care Provider's Identification and This publication explains the tests you must meet to claim Certification the credit for child and dependent care expenses. It ex- plains how to figure and claim the credit. See How To Get Tax Help near the end of this publication You may be able to claim the credit if you pay someone for information about getting these publications and forms. to care for your dependent who is under age 13 or for your spouse or dependent who isn't able to care for himself or herself. The credit can be up to 35% of your expenses. To Can You Claim the Credit? qualify, you must pay these expenses so you can work or look for work. To be able to claim the credit for child and dependent care This publication also discusses some of the employ- expenses, you must file Form 1040, 1040-SR, or ment tax rules for household employers. 1040-NR, and meet all the tests in Tests you must meet to Dependent care benefits. If you received any depend- claim a credit for child and dependent care expenses ent care benefits from your employer during the year, you next. may be able to exclude all or part of them from your in- Tests you must meet to claim a credit for child and come. You must complete Form 2441, Part III, before you dependent care expenses. To be able to claim the can figure the amount of your credit. See Dependent Care credit for child and dependent care expenses, you must Benefits under How To Figure the Credit, later. meet all the following tests. Comments and suggestions. We welcome your com- 1. Qualifying Person Test. The care must be for one or ments about this publication and your suggestions for fu- more qualifying persons who are identified on Form ture editions. 2441. (See Who Is a Qualifying Person, later.) You can send us comments through IRS.gov/ FormComments. Or you can write to: Internal Revenue 2. Earned Income Test. You (and your spouse if filing Service, Tax Forms and Publications, 1111 Constitution jointly) must have earned income during the year. Ave. NW, IR-6526, Washington, DC 20224. (However, see Rule for student-spouse or spouse not Although we can’t respond individually to each com- able to care for self under You Must Have Earned In- ment received, we do appreciate your feedback and will come, later.) consider your comments as we revise our tax forms, in- 3. Work-Related Expense Test. You must pay child structions, and publications. We can’t answer tax ques- and dependent care expenses so you (and your tions sent to the above address. spouse if filing jointly) can work or look for work. (See Tax questions. If you have a tax question not an- Are These Work-Related Expenses, later.) swered by this publication or How To Get Tax Help sec- 4. You must make payments for child and dependent tion at the end of this publication, go to the IRS Interactive care to someone you (and your spouse) can't claim as Tax Assistant page at IRS.gov/Help/ITA where you can a dependent. If you make payments to your child, he find topics using the search feature or by viewing the cate- or she can't be your dependent and must be age 19 gories listed. or older by the end of the year. You can't make pay- Getting tax forms, instructions, and publications. ments to: Visit IRS.gov/Forms to download current and prior-year a. Your spouse, or forms, instructions, and publications. b. The parent of your qualifying person if your quali- Ordering tax forms, instructions, and publications. fying person is your child and under age 13. Go to IRS.gov/OrderForms to order current forms, instruc- tions, and publications; call 800-829-3676 to order See Payments to Relatives or Dependents under prior-year forms and instructions. Your order should arrive Are These Work-Related Expenses, later. within 10 business days. 5. Joint Return Test. Your filing status may be single, head of household, or qualifying widow(er) with de- Useful Items pendent child. If you are married, you must file a joint You may want to see: return, unless an exception applies to you. See What’s Your Filing Status, later. Publication 6. Provider Identification Test. You must identify the
501 501 Dependents, Standard Deduction, and Filing care provider on your tax return. (See Care Provider Information Identification Test, later.)
926 926 Household Employer's Tax Guide 7. If you exclude or deduct dependent care benefits pro- vided by a dependent care benefit plan, the total Form (and Instructions) amount you exclude or deduct must be less than the
2441 2441 Child and Dependent Care Expenses dollar limit for qualifying expenses (generally, $3,000
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35 if one qualifying person was cared for or $6,000 if two selves or others are considered not able to care for them- or more qualifying persons were cared for). (If two or selves. more qualifying persons were cared for, the amount you exclude or deduct will always be less than the Person qualifying for part of year. You determine a dollar limit because the total amount you can exclude person's qualifying status each day. For example, if the or deduct is limited to $5,000. See Reduced Dollar person for whom you pay child and dependent care ex- Limit under How To Figure the Credit, later.) penses no longer qualifies on September 16, count only those expenses through September 15. Also see Yearly These tests are presented in Figure A and are also ex- limit under Dollar Limit, later. plained in detail in this publication. Birth or death of otherwise qualifying person. In de- Who Is a Qualifying Person? termining whether a person is a qualifying person, a per- son who was born or died in 2020 is treated as having Your child and dependent care expenses must be for the lived with you for more than half of 2020 if your home was care of one or more qualifying persons. the person's home more than half the time he or she was alive in 2020. A qualifying person is: 1. Your qualifying child who is your dependent and who Taxpayer identification number. You must include on was under age 13 when the care was provided (but your return the name and taxpayer identification number see Child of divorced or separated parents or parents (generally, the social security number) of the qualifying living apart, later); person(s). If the correct information isn't shown, the credit may be reduced or disallowed. 2. Your spouse who wasn't physically or mentally able to care for himself or herself and lived with you for more Individual taxpayer identification number (ITIN) for than half the year; or aliens. If your qualifying person is a nonresident or resi- dent alien who doesn't have and can't get a social security 3. A person who wasn't physically or mentally able to number (SSN), use that person's ITIN. The ITIN is entered care for himself or herself, lived with you for more than wherever an SSN is requested on a tax return. If the alien half the year, and either: doesn't have an ITIN, he or she must apply for one. See a. Was your dependent, or Form W-7, Application for IRS Individual Taxpayer Identifi- cation Number, for details. b. Would have been your dependent except that: An ITIN is for tax use only. It doesn't entitle the holder i. He or she received gross income of $4,300 or to social security benefits or change the holder's employ- more, ment or immigration status under U.S. law. ii. He or she filed a joint return, or All ITINs not used on a federal tax return at least once for tax years 2017, 2018, or 2019 will expire iii. You, or your spouse if filing jointly, could be ! CAUTION on December 31, 2020. Additionally, all ITINs with claimed as a dependent on someone else's middle digits (the fourth and fifth positions) of 88 will ex- 2020 return. pire at the end of 2020. ITINs issued with middle digits of 90, 91, 92, 94, 95, 96, 97, 98, or 99 are expired unless a Dependent defined. A dependent is a person, other than you or your spouse, for whom you could claim an ex- renewal application was already submitted and it was ap- emption. To be your dependent, a person must be your proved. All expired ITINs must be renewed before being IRS.gov for more informa- qualifying child (or your qualifying relative). However, the used on your tax return. See tion. deductions for personal and dependency exemptions for tax years 2018 through 2025 are suspended, and there- Adoption taxpayer identification number (ATIN). If fore, the amount of the deduction is zero. But in determin- your qualifying person is a child who was placed in your ing whether you may claim a person as a qualifying rela- home for adoption and for whom you don't have an SSN, tive for 2020, the person's gross income must be less than you must get an ATIN for the child. File Form W-7A, Appli- $4,300, not zero. cation for Taxpayer Identification Number for Pending Qualifying child. To be your qualifying child, a child U.S. Adoptions. must live with you for more than half the year and meet other requirements. Child of divorced or separated parents or parents liv- ing apart. Even if you can't claim your child as a depend- More information. For more information about who is ent, he or she is treated as your qualifying person if: a dependent or a qualifying child, see Pub. 501, Depend- ents, Standard Deduction, and Filing Information. • The child was under age 13 or wasn't physically or mentally able to care for himself or herself; Physically or mentally not able to care for oneself. • The child received over half of his or her support dur- Persons who can't dress, clean, or feed themselves be- ing the calendar year from one or both parents who cause of physical or mental problems are considered not are divorced or legally separated under a decree of di- able to care for themselves. Also, persons who must have vorce or separate maintenance, are separated under constant attention to prevent them from injuring them-
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36 a written separation agreement, or lived apart at all • Form 4029, Application for Exemption From Social times during the last 6 months of the calendar year; Security and Medicare Taxes and Waiver of Benefits, • The child was in the custody of one or both parents for for use by members of recognized religious groups. more than half the year; and Each form is discussed here in terms of what is or isn't earned income for purposes of the child and dependent You were the child's custodial parent. • care credit. For information on the use of these forms, see Pub. 517, Social Security and Other Information for Mem- The custodial parent is the parent with whom the child bers of the Clergy and Religious Workers. lived for the greater number of nights in 2020. If the child was with each parent for an equal number of nights, the Form 4361. Whether or not you have an approved custodial parent is the parent with the higher adjusted Form 4361, amounts you received for performing minister- gross income. For details and an exception for a parent ial duties as an employee are earned income. This in- who works at night, see Pub. 501. cludes wages, salaries, tips, and other taxable employee The noncustodial parent can't treat the child as a quali- compensation. fying person even if that parent is entitled to claim the However, amounts you received for ministerial duties, child as a dependent under the special rules for a child of but not as an employee, don't count as earned income. divorced or separated parents. Examples include fees for performing marriages and hon- oraria for delivering speeches. Any amount you received for work that isn't related to You Must Have Earned Income your ministerial duties is earned income. Form 4029. Whether or not you have an approved To claim the credit, you (and your spouse if filing jointly) Form 4029, all wages, salaries, tips, and other taxable must have earned income during the year. employee compensation are earned income. Earned income. Earned income includes wages, salar- However, amounts you received as a self-employed in- ies, tips, other taxable employee compensation, and net dividual don't count as earned income. earnings from self-employment. A net loss from self-em- What isn't earned income? Earned income doesn't in- ployment reduces earned income. Earned income also in- clude: cludes strike benefits and any disability pay you report as wages. • Amounts reported on Form 1040 or 1040-SR, line 1, Generally, only taxable compensation is included. For excluded as foreign earned income on Form 2555, example, foreign earned income you exclude from income line 43; isn't included. However, you can elect to include nontaxa- • Pensions and annuities; ble combat pay in earned income. If you are filing a joint return and both you and your spouse received nontaxable • Social security and railroad retirement benefits; combat pay, you can each make your own election. (In • Workers' compensation; other words, if one of you makes the election, the other one can also make it but doesn't have to.) Including this • Interest and dividends; income will give you a larger credit only if your (or your • Unemployment compensation; spouse's) other earned income is less than the amount Scholarships or fellowship grants, except for those re- entered on line 3 of Form 2441. You should figure your • ported on Form W-2 and paid to you for teaching or credit both ways and make the election if it gives you a other services; greater tax benefit. Nontaxable workfare payments; You can choose to include your nontaxable com- • TIP bat pay in earned income when figuring your • Child support payments received; credit for child and dependent care expenses, • Income of a nonresident alien that isn't effectively con- even if you choose not to include it in earned income for nected with a U.S. trade or business; or the earned income credit or the exclusion or deduction for dependent care benefits. • Any amount received for work while an inmate in a pe- nal institution. Members of certain religious faiths opposed to social Rule for student-spouse or spouse not able to care security. This section is for persons who are members of for self. Your spouse is treated as having earned income certain religious faiths that are opposed to participation in for any month that he or she is: Social Security Act programs and have an IRS-approved form that exempts certain income from social security and 1. A full-time student, or Medicare taxes. These forms are: 2. Physically or mentally not able to care for himself or • Form 4361, Application for Exemption From Self-Em- herself. (Your spouse must also live with you for more ployment Tax for Use by Ministers, Members of Reli- than half the year.) gious Orders and Christian Science Practitioners; and If you are filing a joint return, this rule also applies to you. You can be treated as having earned income for any
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37
Figure A. Can You Claim the Credit?
Start Here No Was the care for one or more qualifying persons? ▶
Yes ▼
1 No Did you have earned income during the year? ▶
Yes ▼ No Did you pay the expenses to allow you1 to work or look for work? ▶
Yes ▼ Were your payments made to someone you or your spouse could Yes ▶ claim as a dependent?
No ▼ Were your payments made to your spouse or to the parent of your Yes ▶ qualifying person who is your qualifying child and under age 13?
No ▼ Were your payments made to your child who was under the age of Yes ▶ 19 at the end of the year?
▼ No No ▶ Are you single? Are you ling a joint return? ▼ Yes No
Yes ▼ Do you meet the requirements No ▶ to be considered unmarried? Yes
▼ ▼ ▼ Yes Do you know the care provider’s name, address, ▼ and identifying number? No
▼ Did you make a reasonable effort to get this No ▶ ▼ information? (See Due diligence.) Yes
▼
▶ Did you pay expenses for more than one qualifying person? No ▼ Are you excluding or deducting at least $3,000 Yes ▶ of dependent care bene ts? Yes No ▼ ▼ ▼ You may be able to claim the child and You CAN’T claim the child ▶ dependent care credit. Fill out Form 2441. and dependent care credit.2
1 This also applies to your spouse, unless your spouse was disabled or a full-time student. 2 If you had expenses that met the requirements for 2019, except that you didn’t pay them until 2020, you may be able to claim those expenses in 2020. See Expenses not paid until the following year under How To Figure the Credit.
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38 month you are a full-time student or not able to care for of your 5-year-old child during the hours when you are yourself. working and your spouse is sleeping. Your expenses are Figure the earned income of the nonworking spouse, considered work related. described under (1) or (2) above, as shown under Earned Income Limit under How To Figure the Credit, later. Volunteer work. For this purpose, you aren't considered This rule applies to only one spouse for any 1 month. If, to be working if you do unpaid volunteer work or volunteer in the same month, both you and your spouse didn't work work for a nominal salary. and are either full-time students or not physically or men- If you work or actively look for tally able to care for yourselves, only one of you can be Work for part of year. work during treated as having earned income in that month. only part of the period covered by the expen- ses, then you must figure your expenses for each day. For Full-time student. You are a full-time student if you example, if you work all year and pay care expenses of are enrolled at a school for the number of hours or classes $250 a month ($3,000 for the year), all the expenses are that the school considers full-time. You must have been a work related. However, if you work or look for work for full-time student for some part of each of 5 calendar only 2 months and 15 days during the year and pay ex- months during the year. (The months need not be consec- penses of $250 a month, your work-related expenses are utive.) limited to $625 (21/2 months × $250).
School. The term “school” includes high schools, col- Temporary absence from work. You don't have to fig- leges, universities, and technical, trade, and mechanical ure your expenses for each day during a short, temporary schools. A school doesn't include an on-the-job training absence from work, such as for vacation or a minor ill- course, correspondence school, or school offering cour- ness, if you have to pay for care anyway. Instead, you can ses only through the Internet. figure your credit including the expenses you paid for the period of absence. Are These Work-Related Expenses? An absence of 2 weeks or less is a short, temporary ab- sence. An absence of more than 2 weeks may be consid- Child and dependent care expenses must be work related ered a short, temporary absence, depending on the cir- to qualify for the credit. Expenses are considered work re- cumstances. lated only if both of the following are true. Example. You pay a nanny to care for your 2-year-old • They allow you (and your spouse if filing jointly) to son and 4-year-old daughter so you can work. You be- work or look for work. come ill and miss 4 months of work but receive sick pay. • They are for a qualifying person's care. You continue to pay the nanny to care for the children while you are ill. Your absence isn't a short, temporary ab- Working or Looking for Work sence, and your expenses aren't considered work related.
To be work related, your expenses must allow you to work Part-time work. If you work part-time, you must generally or look for work. If you are married, generally both you and figure your expenses for each day. However, if you have your spouse must work or look for work. One spouse is to pay for care weekly, monthly, or in another way that in- treated as working during any month he or she is a cludes both days worked and days not worked, you can full-time student or isn't physically or mentally able to care figure your credit including the expenses you paid for days for himself or herself. you didn't work. Any day when you work at least 1 hour is a day of work. Your work can be for others or in your own business or partnership. It can be either full-time or part time. Example 1. You work 3 days a week. While you work, your 6-year-old child attends a dependent care center, Work also includes actively looking for work. However, which complies with all state and local regulations. You if you don't find a job and have no earned income for the can pay the center $150 for any 3 days a week or $250 for year, you can't take this credit. See You Must Have 5 days a week. Your child attends the center 5 days a Earned Income, earlier. week. Your work-related expenses are limited to $150 a week. An expense isn't considered work related merely be- Example 2. The facts are the same as in Example 1, cause you had it while you were working. The purpose of except the center doesn't offer a 3-day option. The entire the expense must be to allow you to work. Whether your $250 weekly fee may be a work related expense. expenses allow you to work or look for work depends on the facts. Care of a Qualifying Person Example 1. The cost of a babysitter while you and your spouse go out to eat isn't normally a work related ex- To be work related, your expenses must be to provide pense. care for a qualifying person.
Example 2. You work during the day. Your spouse You don't have to choose the least expensive way of works at night and sleeps during the day. You pay for care providing the care. The cost of a paid care provider may
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39 be an expense for the care of a qualifying person even if The cost of sending your child to a day camp may be a another care provider is available at no cost. work related expense, even if the camp specializes in a particular activity, such as computers or soccer. Expenses are for the care of a qualifying person only if their main purpose is the person's well-being and protec- Transportation. If a care provider takes a qualifying per- tion. son to or from a place where care is provided, that trans- portation is for the care of the qualifying person. This in- Expenses for household services qualify if part of the cludes transportation by bus, subway, taxi, or private car. services is for the care of qualifying persons. See House- However, transportation not provided by a care provider hold Services, later. isn't for the care of a qualifying person. Also, if you pay the transportation cost for the care provider to come to your Expenses not for care. Expenses for care don't include home, that expense isn't for care of a qualifying person. amounts you pay for food, lodging, clothing, education, and entertainment. However, you can include small Fees and deposits. Fees you paid to an agency to get amounts paid for these items if they are incidental to and the services of a care provider, deposits you paid to an can't be separated from the cost of caring for the qualify- agency or preschool, application fees, and other indirect ing person. Otherwise, see the discussion of Expenses expenses are work-related expenses if you have to pay partly work related, later. them to get care, even though they aren't directly for care. Child support payments aren't for care and don't qualify However, a forfeited deposit isn't for the care of a qualify- for the credit. ing person if care isn't provided.
Education. Expenses for a child in nursery school, pre- Example 1. You paid a fee to an agency to get the school, or similar programs for children below the level of services of the nanny who cares for your 2-year-old kindergarten are expenses for care. daughter while you work. The fee you paid is a work rela- Expenses to attend kindergarten or a higher grade ted expense. aren't expenses for care. Don't use these expenses to fig- ure your credit. Example 2. You placed a deposit with a preschool to However, expenses for before- or after-school care of a reserve a place for your 3-year-old child. You later sent child in kindergarten or a higher grade may be expenses your child to a different preschool and forfeited the de- for care. posit. The forfeited deposit isn't for care and therefore not Summer school and tutoring programs aren't for care. a work related expense.
Example 1. You take your 3-year-old child to a nurs- Household Services ery school that provides lunch and a few educational ac- tivities as part of its preschool childcare service. The lunch Expenses you pay for household services meet the work and educational activities are incidental to the childcare, related expense test if they are at least partly for the and their cost can't be separated from the cost of care. well-being and protection of a qualifying person. You can count the total cost when you figure the credit. Definition. Household services are ordinary and usual Example 2. You place your 10-year-old child in a services done in and around your home that are neces- boarding school so you can work full-time. Only the part of sary to run your home. They include the services of a the boarding school expense that is for the care of your housekeeper, maid, or cook. However, they don't include child is a work related expense. You can count that part of the services of a chauffeur, bartender, or gardener. the expense in figuring your credit if it can be separated from the cost of education. You can't count any part of the Housekeeper. In this publication, the term “house- amount you pay the school for your child's education. keeper” refers to any household employee whose serv- ices include the care of a qualifying person. Care outside your home. You can count the cost of care provided outside your home if the care is for your de- Expenses partly work related. If part of an expense is pendent under age 13 or any other qualifying person who work related (for either household services or the care of a regularly spends at least 8 hours each day in your home. qualifying person) and part is for other purposes, you have to divide the expense. To figure your credit, count only the Dependent care center. You can count care provided part that is work related. However, you don't have to di- outside your home by a dependent care center only if the vide the expense if only a small part is for other purposes. center complies with all state and local regulations that apply to these centers. Example. You pay a housekeeper to care for your A dependent care center is a place that provides care 9-year-old and 15-year-old children so you can work. The for more than six persons (other than persons who live housekeeper spends most of the time doing normal there) and receives a fee, payment, or grant for providing household work and spends 30 minutes a day driving you services for any of those persons, even if the center isn't to and from work. You don't have to divide the expenses. run for profit. You can treat the entire expense of the housekeeper as work related because the time spent driving is minimal. Camp. The cost of sending your child to an overnight Nor do you have to divide the expenses between the two camp isn't considered a work related expense.
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40 children, even though the expenses are partly for the 3. You pay more than half the cost of keeping up your 15-year-old child who isn't a qualifying person, because home for the year. the expense is also partly for the care of your 9-year-old 4. Your spouse doesn't live in your home for the last 6 child, who is a qualifying person. However, the dollar limit months of the year. (discussed later) is based on one qualifying person, not two. Not legally separated. You may also be able to claim the child and dependent care credit even though you Meals and lodging provided for housekeeper. If you aren't legally separated and you file a separate return. have expenses for meals that your housekeeper eats in See the following examples. your home because of his or her employment, count these as work-related expenses. If you have extra expenses for Example 1. Amy separated from her spouse in providing lodging in your home to the housekeeper, count March. She isn't separated under a decree of divorce or these as work-related expenses also. separate maintenance agreement and uses the married filing separate filing status. Amy maintains a home for her- Example. To provide lodging to the housekeeper, you self and Sam, her disabled brother. Sam is permanently move to an apartment with an extra bedroom. You can and totally disabled and unable to care for himself. count the extra rent and utility expenses for the housekee- Because Sam earns $5,600 in interest income, Amy per's bedroom as work related. However, if your house- can't claim him as a dependent (his gross income is keeper moves into an existing bedroom in your home, you greater than $4,300). And, because Amy isn't able to can count only the extra utility expenses as work related. claim Sam as a dependent and she is still married as of Taxes paid on wages. The taxes you pay on wages for the end of the year, she can't use the head of household qualifying child and dependent care services are work-re- filing status. Amy’s filing status is married filing separately lated expenses. For more information on a household em- and Sam qualifies as a qualifying person for the child and ployer's tax responsibilities, see Do You Have Household dependent care credit. Employees, later. Because of the following facts, Amy is able to claim the credit for child and dependent care expenses even though Payments to Relatives or Dependents Amy uses the married filing separately filing status. • Amy didn't live with her spouse for the last 6 months of You can count work related payments you make to rela- the year. tives who aren't your dependents, even if they live in your home. However, don't count any amounts you pay to: • She has maintained a home for herself and Sam (a qualifying individual) since she separated from her 1. A person for whom you (or your spouse if filing jointly) spouse in March. can claim as a dependent; • She maintains her own household and provides more 2. Your child who was under age 19 at the end of the than half of the cost of maintaining that home for her year, even if he or she isn't your dependent; and Sam. 3. A person who was your spouse any time during the • Amy pays an adult daycare center to care for Sam to year; or allow her to work.
4. The parent of your qualifying person if your qualifying Example 2. Dean separated from his spouse in April. person is your child and under age 13. He isn't separated under a decree of divorce or separate maintenance agreement. He and his spouse haven't lived What’s Your Filing Status? together since April, and Dean maintains his own home and provides more than half the cost of maintaining that Generally, married couples must file a joint return to take home for himself and his daughter, Nicole, who is perma- the credit. However, if you are legally separated or living nently and totally disabled. apart from your spouse, you may be able to file a separate Because Nicole is married and files a joint return with return and still take the credit. her husband, who is away in the military, Dean can't claim Nicole as a dependent and therefore can't use the head of Legally separated. You aren't considered married if you household filing status. Dean’s filing status is married filing are legally separated from your spouse under a decree of separately and Nicole qualifies as a qualifying person for divorce or separate maintenance. You may be eligible to the child and dependent care credit. take the credit on your return using head of household fil- Because of the following facts, Dean is able to claim ing status. the credit for child and dependent care expenses even though he uses the married filing separately filing status. Married and living apart. You aren't considered married and are eligible to take the credit if all the following apply. • Dean didn't live with his spouse for the last 6 months of the year. 1. You file a return apart from your spouse. • He has maintained a home for himself and Nicole (a 2. Your home is the home of a qualifying person for qualifying individual) since he separated from his more than half the year. spouse in April.
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41 • He maintains his own household and provides more 2. A copy of the provider's completed Form W-4, Em- than half of the cost of maintaining that home for him ployee's Withholding Certificate, if he or she is your and Nicole. household employee; • Dean pays a daycare provider to care for Nicole to al- 3. A copy of the statement furnished by your employer if low him to work. the provider is your employer's dependent care plan; or Costs of keeping up a home. The costs of keeping up a home normally include property taxes, mortgage in- 4. A letter or invoice from the provider if it shows the terest, rent, utility charges, home repairs, insurance on the necessary information. home, and food eaten at home. The costs of keeping up a home don't include pay- You should keep this information with your tax re- ments for clothing, education, medical treatment, vaca- cords. Don't send Form W-10 (or other document tions, life insurance, transportation, or mortgage principal. RECORDS containing this information) to the IRS. They also don't include the purchase, permanent im- provement, or replacement of property. For example, you Due diligence. If the care provider information you give can't include the cost of replacing a water heater. How- is incorrect or incomplete, your credit may not be allowed. ever, you can include the cost of repairing a water heater. However, if you can show that you used due diligence in trying to supply the information, you can still claim the Death of spouse. If your spouse died during the year credit. and you don't remarry before the end of the year, you You can show due diligence by getting and keeping the must generally file a joint return to take the credit. If you do provider's completed Form W-10 or one of the other sour- remarry before the end of the year, the credit can be ces of information just listed. Care providers can be penal- claimed on your deceased spouse's own return. ized if they don't provide this information to you or if they provide incorrect information. Care Provider Identification Test Provider refusal. If the provider refuses to give you the identifying information, you should report on Form You must identify all persons or organizations that provide 2441 whatever information you have (such as the name care for your child or dependent. Use Form 2441, Part I, to and address). Enter “See Attached Statement” in the col- show the information. umns calling for the information you don't have. Then at- If you don't have any care providers and you are filing tach a statement explaining that you requested the infor- Form 2441 only to report taxable income in Part III, enter mation from the care provider, but the provider didn't give “none” in line 1, column (a). you the information. Be sure to write your name and social security number on this statement. The statement will Information needed. To identify the care provider, you show that you used due diligence in trying to furnish the must give the provider's: necessary information.
1. Name, U.S. citizens and resident aliens living abroad. If you 2. Address, and are living abroad, your care provider may not have, and may not be required to get, a U.S. taxpayer identification 3. Taxpayer identification number. number (for example, an SSN or an EIN). If so, enter If the care provider is an individual, the taxpayer identi- “LAFCP” (Living Abroad Foreign Care Provider) in the fication number is his or her social security number or indi- space for the care provider's taxpayer identification num- vidual taxpayer identification number. If the care provider ber. is an organization, then it is the employer identification number (EIN). You don't have to show the taxpayer identification num- How To Figure the Credit ber if the care provider is a tax-exempt organization (such as a church or school). In this case, enter “Tax-Exempt” in Your credit is a percentage of your work-related expen- the space where Form 2441 asks for the number. ses. Your expenses are subject to the earned income limit If you can't provide all of the information or the informa- and the dollar limit. The percentage is based on your ad- tion is incorrect, you must be able to show that you used justed gross income. due diligence (discussed later) in trying to furnish the nec- essary information. Figuring Total Work-Related Getting the information. You can use Form W-10, De- Expenses pendent Care Provider's Identification and Certification, to request the required information from the care provider. If To figure the credit for 2020 work-related expenses, count you don't use Form W-10, you can get the information only those you paid by December 31, 2020. from one of the other sources listed in the instructions for Form W-10, including: Expenses prepaid in an earlier year. If you pay for services before they are provided, you can count the 1. A copy of the provider's social security card;
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42 prepaid expenses only in the year the care is received. 3. Pre-tax contributions you made under a dependent Claim the expenses for the later year as if they were ac- care flexible spending arrangement. tually paid in that later year. Your salary may have been reduced to pay for these ben- Expenses not paid until the following year. Don't efits. If you received benefits as an employee, they should count 2019 expenses that you paid in 2020 as work-rela- be shown in box 10 of your Form W-2, Wage and Tax ted expenses for 2020. You may be able to claim an addi- Statement. See Statement for employee, later. Benefits tional credit for them on your 2020 return, but you must you received as a partner should be shown in box 13 of figure it separately. See Payments for prior-year expenses your Schedule K-1 (Form 1065) with code O. under Amount of Credit, later. Enter the amount of these benefits on Form 2441, Part III, line 12. If you had expenses in 2020 that you didn't pay TIP until 2021, you can't count them when figuring Exclusion or deduction. If your employer provides de- your 2020 credit. You may be able to claim a pendent care benefits under a qualified plan, you may be credit for them on your 2021 return. able to exclude these benefits from your income. Your employer can tell you whether your benefit plan qualifies. Expenses reimbursed. If a state social services agency To claim the exclusion, you must complete Part III of Form pays you a nontaxable amount to reimburse you for some 2441. of your child and dependent care expenses, you can't If you are self-employed and receive benefits from a count the expenses that are reimbursed as work-related qualified dependent care benefit plan, you are treated as expenses. both employer and employee. Therefore, you wouldn't get an exclusion from wages. Instead, you would get a deduc- Example. You paid work-related expenses of $3,000. tion on Schedule C (Form 1040), line 14; Schedule E You are reimbursed $2,000 by a state social services (Form 1040), line 19 or 28; or Schedule F (Form 1040), agency. You can use only $1,000 to figure your credit. line 15. To claim the deduction, you must use Form 2441. The amount you can exclude or deduct is limited to the Medical expenses. Some expenses for the care of quali- smallest of: fying persons who aren't able to care for themselves may qualify as work-related expenses and also as medical ex- 1. The total amount of dependent care benefits you re- penses. You can use them either way, but you can't use ceived during the year, the same expenses to claim both a credit and a medical 2. The total amount of qualified expenses you incurred expense deduction. during the year, If you use these expenses to figure the credit and they are more than the earned income limit or the dollar limit, 3. Your earned income, discussed later, you can add the excess to your medical 4. Your spouse's earned income; or expenses. However, if you use your total expenses to fig- ure your medical expense deduction, you can't use any 5. $5,000 ($2,500 if married filing separately). part of them to figure your credit. For information on medi- cal expenses, see Pub. 502, Medical and Dental Expen- The definition of earned income for the exclusion or de- ses. duction is the same as the definition used when figuring Amounts excluded from your income under your the credit except that earned income for the exclusion or employer's dependent care benefits plan can't be deduction doesn't include any dependent care benefits CAUTION! used to claim a medical expense deduction. you receive. You can choose to include your nontaxable com- Dependent Care Benefits bat pay in earned income when figuring your ex- clusion or deduction, even if you choose not to in- If you receive dependent care benefits, your dollar limit for clude it in earned income for the earned income credit or purposes of the credit may be reduced. See Reduced the credit for child and dependent care expenses. Dollar Limit, later. But, even if you can't take the credit, you may be able to take an exclusion or deduction for the Statement for employee. Your employer must give you dependent care benefits. a Form W-2 (or similar statement), showing in box 10 the total amount of dependent care benefits provided to you Dependent care benefits. Dependent care benefits in- during the year under a qualified plan. Your employer will clude: also include any dependent care benefits over $5,000 in 1. Amounts your employer paid directly to either you or your wages shown on your Form W-2 in box 1. your care provider for the care of your qualifying per- son while you work, Effect of exclusion on credit. If you exclude dependent care benefits from your income, the amount of the exclu- 2. The fair market value of care in a daycare facility pro- ded benefits: vided or sponsored by your employer, and 1. Isn't included in your work-related expenses; and
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43 2. Reduces the dollar limit, discussed later. have a net loss, you may be able to figure your net earn- ings by using an optional method instead of the regular Earned Income Limit method. See Pub. 334, Tax Guide for Small Business, for details. If you use an optional method to figure net earn- The amount of work-related expenses you use to figure ings for self-employment tax purposes, include those net your credit can't be more than: earnings in your earned income for this credit. In this case, subtract any deduction you claimed on Schedule 1 (Form 1. Your earned income for the year if you are single at 1040), line 14, from the total of the amounts on Sched- the end of the year, or ule SE, lines 3 and 4b, to figure your net earnings. 2. The smaller of your or your spouse's earned income for the year if you are married at the end of the year. You or your spouse is a student or not able to care for self. Your spouse who is either a full-time student or Earned income for the purpose of figuring the credit is not able to care for himself or herself is treated as having defined under You Must Have Earned Income, earlier. earned income. His or her earned income for each month For purposes of item (2), use your spouse's is considered to be at least $250 if there is one qualifying TIP earned income for the entire year, even if you person in your home, or at least $500 if there are two or were married for only part of the year. more. Spouse works. If your spouse works during that Example. You remarried on December 3. Your earned month, use the higher of $250 (or $500) or his or her ac- income for the year was $18,000. Your new spouse's tual earned income for that month. earned income for the year was $2,000. You paid work-re- Spouse qualifies for part of month. If your spouse is lated expenses of $3,000 for the care of your 5-year-old a full-time student or not able to care for himself or herself child and qualified to claim the credit. The amount of ex- for only part of a month, the full $250 (or $500) still applies penses you use to figure your credit can't be more than for that month. $2,000 (the smaller of your earned income or that of your spouse). You are a student or not able to care for yourself. These rules also apply if you are a student or not able to Separated spouse. If you are legally separated or mar- care for yourself and are filing a joint return. For each ried and living apart from your spouse (as described un- month or part of a month you are a student or not able to der What’s Your Filing Status, earlier), you aren't consid- care for yourself, your earned income is considered to be ered married for purposes of the earned income limit. Use at least $250 (or $500). If you also work during that month, only your income in figuring the earned income limit. use the higher of $250 (or $500) or your actual earned in- come for that month. Surviving spouse. If your spouse died during the year and you file a joint return as a surviving spouse, you may, Both spouses qualify. If, in the same month, both but aren't required to, take into account the earned in- you and your spouse are either full-time students or not come of your spouse who died during the year. able to care for yourselves, only one spouse can be con- sidered to have this earned income of $250 (or $500) for Community property laws. Disregard community prop- that month. erty laws when you figure earned income for this credit. Example. Jim works and keeps up a home for himself Self-employment earnings. If you are self-employed, and his wife Sharon. Because of an accident, Sharon isn't include your net earnings in earned income. For purposes able to care for herself for 11 months during the tax year. of the child and dependent care credit, net earnings from During the 11 months, Jim pays $3,300 of work-related self-employment generally means the amount from expenses for Sharon's care. These expenses also qualify Schedule SE, line 3, minus any deduction for self-employ- as medical expenses. Their adjusted gross income is ment tax on Schedule 1 (Form 1040), line 14. Include your $29,000 and the entire amount is Jim's earned income. self-employment earnings in earned income, even if they Jim and Sharon's earned income limit is the smallest of are less than $400 and you didn't file Schedule SE. the following amounts. Clergy or church employee. If you are a member of the clergy or a church employee, see the Instructions for Jim and Sharon's Earned Income Limit Form 2441 for details. 1) Work-related expenses Jim paid ...... $ 3,300 2) Jim's earned income ...... $ 29,000 Statutory employee. If you filed Schedule C (Form 3) Income considered earned by Sharon 1040) to report income as a statutory employee, also in- (11 × $250) ...... $ 2,750 clude as earned income the amount from line 1 of that Schedule C (Form 1040). Jim and Sharon can use $2,750 to figure the credit and treat the balance of $550 ($3,300 − $2,750) as a medical Net loss. You must reduce your earned income by any expense. However, if they use the $3,300 first as a medi- net loss from self-employment. cal expense, they can't use any part of that amount to fig- Optional method if earnings are low or a net loss. ure the credit. If your net earnings from self-employment are low or you
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Dollar Limit George's Reduced Dollar Limit 1) Maximum allowable expenses for one There is a dollar limit on the amount of your work-related qualifying person ...... $3,000 expenses you can use to figure the credit. This limit is 2) Minus: Dependent care benefits George $3,000 for one qualifying person, or $6,000 for two or excludes from income ...... −1,000 more qualifying persons. 3) Reduced dollar limit on expenses George can use for the credit ...... $2,000 If you paid work-related expenses for the care of TIP two or more qualifying persons, the applicable Example 2. Randall is married and both he and his dollar limit is $6,000. This limit doesn't need to be wife are employed. Each has earned income in excess of divided equally among them. For example, if your work-re- $6,000. They have two children, Anne and Andy, ages 2 lated expenses for the care of one qualifying person are and 4, who attend a daycare facility licensed and regula- $3,200 and your work-related expenses for another quali- ted by the state. Randall's work-related expenses are fying person are $2,800, you can use the total, $6,000, $6,000 for the year. when figuring the credit. Randall's employer has a dependent care assistance program as part of its cafeteria plan, which allows employ- Yearly limit. The dollar limit is a yearly limit. The amount ees to make pre-tax contributions to a dependent care of the dollar limit remains the same no matter how long, flexible spending arrangement. Randall has elected to during the year, you have a qualifying person in your take the maximum $5,000 exclusion from his salary to household. Use the $3,000 limit if you paid work-related cover dependent care expenses through this program. expenses for the care of one qualifying person at any time Although the dollar limit for his work-related expenses during the year. Use $6,000 if you paid work-related ex- is $6,000 (two or more qualifying persons), Randall fig- penses for the care of more than one qualifying person at ures his credit on only $1,000 of the $6,000 work related any time during the year. expense paid. This is because his dollar limit is reduced as shown next. Example 1. You pay $500 a month for after-school care for your son. He turned 13 on May 1 and is no longer Randall's Reduced Dollar Limit a qualifying person. You can use the $2,000 of expenses 1) Maximum allowable expenses for two for his care January through April to figure your credit be- qualifying persons ...... $6,000 cause it isn't more than the $3,000 yearly limit. 2) Minus: Dependent care benefits selected from employer's cafeteria plan and Example 2. In July of this year, to permit your spouse excluded from Randall's income ...... −5,000 to begin a new job, you enrolled your 3-year-old daughter 3) Reduced dollar limit on work-related expenses in a nursery school that provides preschool childcare. You Randall can use for the credit ...... $1,000 paid $300 per month for the childcare. You can use the full $1,800 you paid ($300 × 6 months) as qualified expenses because it isn't more than the $3,000 yearly limit. Amount of Credit
Reduced Dollar Limit To determine the amount of your credit, multiply your work-related expenses (after applying the earned income If you received dependent care benefits that you exclude and dollar limits) by a percentage. This percentage de- or deduct from your income, you must subtract that pends on your adjusted gross income shown on Form amount from the dollar limit that applies to you. Your re- 1040, 1040-SR, or 1040-NR, line 11. The following table duced dollar limit is figured on Form 2441, Part III. See shows the percentage to use based on adjusted gross in- Dependent Care Benefits, earlier, for information on ex- come. cluding or deducting these benefits. IF your adjusted gross income is: THEN the Example 1. George is a widower with one child and Over: But not over: percentage is: earns $24,000 a year. He pays work-related expenses of $ 0 — $15,000 35% $2,900 for the care of his 4-year-old child and qualifies to 15,000 — 17,000 34% claim the credit for child and dependent care expenses. 17,000 — 19,000 33% His employer pays an additional $1,000 under a qualified 19,000 — 21,000 32% 21,000 — 23,000 31% dependent care benefit plan. This $1,000 is excluded from 23,000 — 25,000 30% George's income. 25,000 — 27,000 29% Although the dollar limit for his work-related expenses 27,000 — 29,000 28% is $3,000 (one qualifying person), George figures his 29,000 — 31,000 27% credit on only $2,000 of the $2,900 work-related expenses 31,000 — 33,000 26% he paid. This is because his dollar limit is reduced as 33,000 — 35,000 25% shown next. 35,000 — 37,000 24% 37,000 — 39,000 23% 39,000 — 41,000 22% 41,000 — 43,000 21% 43,000 — No limit 20%
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To qualify for the credit, you must have one or more income. A credit for their 2019 expenses paid in 2020 isn't qualifying persons. You should show the expenses for allowed in 2019. It is allowed for the 2020 tax year, but each person on Form 2441, line 2, column (c). However, it they must use their adjusted gross income for 2019 to fig- is possible a qualifying person could have no expenses ure the amount. The filled-in Worksheet A they used to fig- and a second qualifying person could have expenses ex- ure this credit is shown later. ceeding $3,000. You should list -0- for the one person and Sam and Kate add the $162 from line 13 of this work- the actual amount for the second person. The $6,000 limit sheet to their 2020 credit and enter the total on their Form that applies to two or more qualifying persons would still 2441, line 9. They enter “CPYE $162” and their child's be used to figure your credit unless you already excluded name and SSN in the space to the left of line 9. or deducted, in Part III of Form 2441, certain dependent care benefits paid to you (or on your behalf) by your em- ployer. How To Claim the Credit Example. Roger and Megan Paris have two qualifying children. They received $1,000 of dependent care bene- To claim the credit, you can file Form 1040, 1040-SR, or fits from Megan's employer during 2020, but they incurred 1040-NR. a total of $19,500 of child and dependent care expenses. Form 1040, 1040-SR, or 1040-NR. You must complete They complete Part III of Form 2441 to exclude the $1,000 Form 2441 and attach it to your Form 1040, 1040-SR, or from their taxable income (offsetting $1,000 of their ex- 1040-NR. Enter the credit on your Schedule 3 (Form penses). Roger and Megan continue to line 27 to figure 1040), line 2. their credit using the remaining $18,500 of expenses. Line 30 tells them to complete line 2 without including Limit on credit. The amount of credit you can claim is any dependent care benefits. They complete line 2 of limited to your tax. For more information, see the Instruc- Form 2441, listing both Susan and James, as shown in tions for Form 2441. the Line 2 Example below. All of Susan's expenses were covered by the $1,000 of Tax credit not refundable. You can't get a refund for employer-provided dependent care benefits. However, any part of the credit that is more than this limit. their son James has special needs and they paid $18,500 Recordkeeping. You should keep records of for his care. Line 3 imposes a $5,000 limit for two or more your work-related expenses. Also, if your depend- children ($6,000 limit minus $1,000 already excluded from RECORDS ent or spouse isn't able to care for himself or her- income = $5,000) and Roger and Megan continue to com- self, your records should show both the nature and length plete the form. of the disability. Other records you should keep to support Even though line 2 indicates one of the Paris children your claim for the credit are described under Care Pro- didn't have any dependent care expenses, it doesn't vider Identification Test, earlier. change the fact that they had two qualifying children for the purposes of Form 2441. Payments for prior-year expenses. If you had work-re- Do You Have lated expenses in 2019 that you paid in 2020, you may be able to increase the credit on your 2020 return. Attach a Household Employees? statement to your form showing how you figured the addi- tional amount from 2019. Then enter “CPYE” (Credit for If you pay someone to come to your home and care for Prior-Year Expenses) and the amount of the credit on the your dependent or spouse, you may be a household em- dotted line next to line 9 on Form 2441. Also enter the ployer. If you are a household employer, you will need an name and taxpayer identification number of the person for employer identification number (EIN) and you may have to whom you paid the prior-year expenses. Then add this pay employment taxes. If the individuals who work in your credit to the amount on line 9, and replace the amount on home are self-employed, you aren't liable for any of the line 9 with the total. See Worksheet A. taxes discussed in this section. Self-employed persons who are in business for themselves aren't household em- Example. In 2019, Sam and Kate had childcare ex- ployees. Usually, you aren't a household employer if the penses of $2,600 for their 12-year-old child. Of the person who cares for your dependent or spouse does so $2,600, they paid $2,000 in 2019 and $600 in 2020. Their at his or her home or place of business. adjusted gross income for 2019 was $30,000. Sam's earned income of $14,000 was less than Kate's earned Line 2 Example
(a) Qualifying person's name (b) Qualifying person's social (c) Qualified expenses you security number incurred and paid in 2020 for First Last the person listed in column (a) Susan Paris 123-00-6789 -0- 00 James Paris 187-00-4321 18,500 00
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46 Worksheet A. Worksheet for 2019 Expenses Paid in 2020 Keep for Your Records
Use this worksheet to figure the credit you may claim for 2019 expenses paid in 2020.
1. Enter your 2019 qualified expenses paid in 2019 ...... 1. 2. Enter your 2019 qualified expenses paid in 2020 ...... 2. 3. Add the amounts on lines 1 and 2 ...... 3. 4. Enter $3,000 if care was for one qualifying person ($6,000 if for two or more) ...... 4. 5. Enter any dependent care benefits received for 2019 and excluded from your income (from your 2019 Form 2441, line 25) ...... 5. 6. Subtract the amount on line 5 from the amount on line 4 and enter the result ...... 6. 7. Compare your earned income for 2019 and your spouse's earned income for 2019 and enter the smaller amount ...... 7. 8. Compare the amounts on lines 3, 6, and 7 and enter the smallest amount ...... 8. 9. Enter the amount on which you figured the credit for 2019 (from your 2019 Form 2441, line 6) ...... 9. 10. Subtract the amount on line 9 from the amount on line 8 and enter the result. If zero or less, stop here. You can't increase your 2020 credit by any previous year's expenses ...... 10. 11. Enter your 2019 adjusted gross income (from your 2019 Form 1040, line 8b, or 1040-NR, line 35) ...... 11. 12. Find your 2019 adjusted gross income in the table below and enter the corresponding decimal amount here ...... 12.
IF your 2019 adjusted gross income is: THEN the decimal Over: But not over: amount is: $ 0 — $15,000 0.35 15,000 — 17,000 0.34 17,000 — 19,000 0.33 19,000 — 21,000 0.32 21,000 — 23,000 0.31 23,000 — 25,000 0.30 25,000 — 27,000 0.29 27,000 — 29,000 0.28 29,000 — 31,000 0.27 31,000 — 33,000 0.26 33,000 — 35,000 0.25 35,000 — 37,000 0.24 37,000 — 39,000 0.23 39,000 — 41,000 0.22 41,000 — 43,000 0.21 43,000 — No limit 0.20
13. Multiply line 10 by line 12. Add this amount to your 2020 credit and enter the total on your 2020 Form 2441, line 9. Enter the following on the dotted line next to line 9 of Form 2441. • “CPYE.” • The amount of this credit for a prior-year expenses. Also, attach a statement to your tax return showing the name and taxpayer identification number of the person for whom you paid the prior-year expenses and how you figured the credit ...... 13.
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47 Worksheet A. Filled-in Worksheet for 2019 Expenses Paid in 2020 Keep for Your Records
Use this worksheet to figure the credit you may claim for 2019 expenses paid in 2020.
1. Enter your 2019 qualified expenses paid in 2019 ...... 1. $2,000 2. Enter your 2019 qualified expenses paid in 2020 ...... 2. 600 3. Add the amounts on lines 1 and 2 ...... 3. 2,600 4. Enter $3,000 if care was for one qualifying person ($6,000 if for two or more) ...... 4. 3,000 5. Enter any dependent care benefits received for 2019 and excluded from your income (from your 2019 Form 2441, line 25) ...... 5. -0- 6. Subtract the amount on line 5 from the amount on line 4 and enter the result ...... 6. 3,000 7. Compare your earned income for 2019 and your spouse's earned income for 2019 and enter the smaller amount ...... 7. 14,000 8. Compare the amounts on lines 3, 6, and 7 and enter the smallest amount ...... 8. 2,600 9. Enter the amount on which you figured the credit for 2019 (from your 2019 Form 2441, line 6) ...... 9. 2,000 10. Subtract the amount on line 9 from the amount on line 8 and enter the result. If zero or less, stop here. You can't increase your 2020 credit by any previous year's expenses ...... 10. 600 11. Enter your 2019 adjusted gross income (from your 2019 Form 1040, line 8b, or 1040-NR, line 35) ...... 11. 30,000 12. Find your 2019 adjusted gross income in the table below and enter the corresponding decimal amount here ...... 12. 0.27
IF your 2019 adjusted gross income is: THEN the decimal Over: But not over: amount is: $ 0 — $15,000 0.35 15,000 — 17,000 0.34 17,000 — 19,000 0.33 19,000 — 21,000 0.32 21,000 — 23,000 0.31 23,000 — 25,000 0.30 25,000 — 27,000 0.29 27,000 — 29,000 0.28 29,000 — 31,000 0.27 31,000 — 33,000 0.26 33,000 — 35,000 0.25 35,000 — 37,000 0.24 37,000 — 39,000 0.23 39,000 — 41,000 0.22 41,000 — 43,000 0.21 43,000 — No limit 0.20
13. Multiply line 10 by line 12. Add this amount to your 2020 credit and enter the total on your 2020 Form 2441, line 9. Enter the following on the dotted line next to line 9 of Form 2441. • “CPYE.” • The amount of this credit for a prior-year expenses. Also, attach a statement to your tax return showing the name and taxpayer identification number of the person for whom you paid the prior-year expenses and how you figured the credit ...... 13. $162
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48 If you use a placement agency that exercises control in your local community, if you qualify, which include the over what work is done and how it will be done by a baby- following. sitter or companion who works in your home, the worker • Free File. This program lets you prepare and file your isn't your employee. This control could include providing federal individual income tax return for free using rules of conduct and appearance and requiring regular re- brand-name tax-preparation-and-filing software or ports. In this case, you don't have to pay employment Free File fillable forms. However, state tax preparation taxes. But if an agency merely gives you a list of sitters may not be available through Free File. Go to IRS.gov/ and you hire one from that list and pay the sitter directly, FreeFile to see if you qualify for free online federal tax the sitter may be your employee. preparation, e-filing, and direct deposit or payment op- If you have a household employee, you may be subject tions. to: • VITA. The Volunteer Income Tax Assistance (VITA) 1. Social security and Medicare taxes, program offers free tax help to people with low-to-moderate incomes, persons with disabilities, 2. Federal unemployment tax, and and limited-English-speaking taxpayers who need 3. Federal income tax withholding. help preparing their own tax returns. Go to IRS.gov/ VITA, download the free IRS2Go app, or call Social security and Medicare taxes are generally withheld 800-906-9887 for information on free tax return prepa- from the employee's pay and matched by the employer. ration. Federal unemployment (FUTA) tax is paid by the em- ployer only and provides for payments of unemployment • TCE. The Tax Counseling for the Elderly (TCE) pro- compensation to workers who have lost their jobs. Federal gram offers free tax help for all taxpayers, particularly income tax is withheld from the employee's total pay if the those who are 60 years of age and older. TCE volun- employee asks you to do so and you agree. teers specialize in answering questions about pen- sions and retirement-related issues unique to seniors. For more information on a household employer's tax re- Go to IRS.gov/TCE, download the free IRS2Go app, sponsibilities, see Pub. 926 and Schedule H (Form 1040) or call 888-227-7669 for information on free tax return and its instructions. preparation. State employment tax. You may also have to pay state • MilTax. Members of the U.S. Armed Forces and unemployment tax. Contact your state unemployment tax qualified veterans may use MilTax, a free tax service office for information. You should also find out whether offered by the Department of Defense through Military you need to pay or collect other state employment taxes OneSource. or carry worker's compensation insurance. For a list of Also, the IRS offers Free Fillable Forms, which can state unemployment tax agencies, visit the U.S. Depart- be completed online and then filed electronically re- ment of Labor's website. To find that website, use the link gardless of income. in Pub. 926 or search online. Using online tools to help prepare your return. Go to IRS.gov/Tools for the following. How To Get Tax Help • The Earned Income Tax Credit Assistant (IRS.gov/ EITCAssistant) determines if you’re eligible for the If you have questions about a tax issue, need help prepar- earned income credit (EIC). ing your tax return, or want to download free publications, • The Online EIN Application (IRS.gov/EIN) helps you forms, or instructions, go to IRS.gov and find resources get an employer identification number (EIN). that can help you right away. • The Tax Withholding Estimator (IRS.gov/W4app) Preparing and filing your tax return. After receiving all makes it easier for everyone to pay the correct amount your wage and earnings statements (Form W-2, W-2G, of tax during the year. The tool is a convenient, online 1099-R, 1099-MISC, 1099-NEC, etc.); unemployment way to check and tailor your withholding. It’s more compensation statements (by mail or in a digital format) or user-friendly for taxpayers, including retirees and other government payment statements (Form 1099-G); self-employed individuals. The features include the and interest, dividend, and retirement statements from following. banks and investment firms (Forms 1099), you have sev- – Easy to understand language. eral options to choose from to prepare and file your tax re- turn. You can prepare the tax return yourself, see if you – The ability to switch between screens, correct pre- qualify for free tax preparation, or hire a tax professional to vious entries, and skip screens that don’t apply. prepare your return. – Tips and links to help you determine if you qualify for tax credits and deductions. Free options for tax preparation. Go to IRS.gov to see your options for preparing and filing your return online or – A progress tracker. – A self-employment tax feature.
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49 – Automatic calculation of taxable social security ben- agents, and individuals who process Form W-2, Wage efits. and Tax Statement, and Form W-2c, Corrected Wage and • The First Time Homebuyer Credit Account Look-up Tax Statement. (IRS.gov/HomeBuyer) tool provides information on IRS social media. Go to IRS.gov/SocialMedia to see the your repayments and account balance. various social media tools the IRS uses to share the latest • The Sales Tax Deduction Calculator (IRS.gov/ information on tax changes, scam alerts, initiatives, prod- SalesTax) figures the amount you can claim if you ucts, and services. At the IRS, privacy and security are itemize deductions on Schedule A (Form 1040). paramount. We use these tools to share public informa- tion with you. Don’t post your SSN or other confidential in- Getting answers to your tax questions. On formation on social media sites. Always protect your iden- IRS.gov, you can get up-to-date information on tity when using any social networking site. current events and changes in tax law. The following IRS YouTube channels provide short, in- • IRS.gov/Help: A variety of tools to help you get an- formative videos on various tax-related topics in English, swers to some of the most common tax questions. Spanish, and ASL. • IRS.gov/ITA: The Interactive Tax Assistant, a tool that • Youtube.com/irsvideos. will ask you questions on a number of tax law topics Youtube.com/irsvideosmultilingua. and provide answers. • Youtube.com/irsvideosASL. • IRS.gov/Forms: Find forms, instructions, and publica- • tions. You will find details on 2020 tax changes and Watching IRS videos. The IRS Video portal hundreds of interactive links to help you find answers (IRSVideos.gov) contains video and audio presentations to your questions. for individuals, small businesses, and tax professionals. • You may also be able to access tax law information in your electronic filing software. Online tax information in other languages. You can find information on IRS.gov/MyLanguage if English isn’t your native language. Need someone to prepare your tax return? There are various types of tax return preparers, including tax prepar- Free interpreter service. Multilingual assistance, provi- ers, enrolled agents, certified public accountants (CPAs), ded by the IRS, is available at Taxpayer Assistance Cen- attorneys, and many others who don’t have professional ters (TACs) and other IRS offices. Over-the-phone inter- credentials. If you choose to have someone prepare your preter service is accessible in more than 350 languages. tax return, choose that preparer wisely. A paid tax pre- parer is: Getting tax forms and publications. Go to IRS.gov/ Forms to view, download, or print all of the forms, instruc- • Primarily responsible for the overall substantive accu- tions, and publications you may need. You can also down- racy of your return, load and view popular tax publications and instructions • Required to sign the return, and (including the Instructions for Forms 1040 and 1040-SR) on mobile devices as an eBook at IRS.gov/eBooks. Or • Required to include their preparer tax identification you can go to IRS.gov/OrderForms to place an order. number (PTIN). Although the tax preparer always signs the return, Access your online account (individual taxpayers you're ultimately responsible for providing all the informa- only). Go to IRS.gov/Account to securely access infor- tion required for the preparer to accurately prepare your mation about your federal tax account. return. Anyone paid to prepare tax returns for others • View the amount you owe, pay online, or set up an on- should have a thorough understanding of tax matters. For line payment agreement. more information on how to choose a tax preparer, go to Tips for Choosing a Tax Preparer on IRS.gov. • Access your tax records online. • Review your payment history. Coronavirus. Go to IRS.gov/Coronavirus for links to in- formation on the impact of the coronavirus, as well as tax • Go to IRS.gov/SecureAccess to review the required relief available for individuals and families, small and large identity authentication process. businesses, and tax-exempt organizations. Using direct deposit. The fastest way to receive a tax Tax reform. Tax reform legislation affects individuals, refund is to file electronically and choose direct deposit, businesses, and tax-exempt and government entities. Go which securely and electronically transfers your refund di- to IRS.gov/TaxReform for information and updates on rectly into your financial account. Direct deposit also how this legislation affects your taxes. avoids the possibility that your check could be lost, stolen, or returned undeliverable to the IRS. Eight in 10 taxpayers Employers can register to use Business Services On- use direct deposit to receive their refunds. The IRS issues line. The Social Security Administration (SSA) offers on- more than 90% of refunds in less than 21 days. line service at SSA.gov/employer for fast, free, and secure online W-2 filing options to CPAs, accountants, enrolled
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50 Getting a transcript of your return. The quickest way • Electronic Funds Withdrawal: Offered only when filing to get a copy of your tax transcript is to go to IRS.gov/ your federal taxes using tax return preparation soft- Transcripts. Click on either “Get Transcript Online” or “Get ware or through a tax professional. Transcript by Mail” to order a free copy of your transcript. • Electronic Federal Tax Payment System: Best option If you prefer, you can order your transcript by calling for businesses. Enrollment is required. 800-908-9946. • Check or Money Order: Mail your payment to the ad- Reporting and resolving your tax-related identity dress listed on the notice or instructions. theft issues. • Cash: You may be able to pay your taxes with cash at • Tax-related identity theft happens when someone a participating retail store. steals your personal information to commit tax fraud. Same-Day Wire: You may be able to do same-day Your taxes can be affected if your SSN is used to file a • wire from your financial institution. Contact your finan- fraudulent return or to claim a refund or credit. cial institution for availability, cost, and cut-off times. • The IRS doesn’t initiate contact with taxpayers by email, text messages, telephone calls, or social media What if I can’t pay now? Go to IRS.gov/Payments for channels to request personal or financial information. more information about your options. This includes requests for personal identification num- • Apply for an online payment agreement (IRS.gov/ bers (PINs), passwords, or similar information for OPA) to meet your tax obligation in monthly install- credit cards, banks, or other financial accounts. ments if you can’t pay your taxes in full today. Once • Go to IRS.gov/IdentityTheft, the IRS Identity Theft you complete the online process, you will receive im- Central webpage, for information on identity theft and mediate notification of whether your agreement has data security protection for taxpayers, tax professio- been approved. nals, and businesses. If your SSN has been lost or • Use the Offer in Compromise Pre-Qualifier to see if stolen or you suspect you’re a victim of tax-related you can settle your tax debt for less than the full identity theft, you can learn what steps you should amount you owe. For more information on the Offer in take. Compromise program, go to IRS.gov/OIC. • Get an Identity Protection PIN (IP PIN). IP PINs are six-digit numbers assigned to eligible taxpayers to Filing an amended return. You can now file Form help prevent the misuse of their SSNs on fraudulent 1040-X electronically with tax filing software to amend federal income tax returns. When you have an IP PIN, 2019 Forms 1040 and 1040-SR. To do so, you must have it prevents someone else from filing a tax return with e-filed your original 2019 return. Amended returns for all your SSN. To learn more, go to IRS.gov/IPPIN. prior years must be mailed. See Tips for taxpayers who need to file an amended tax return and go to IRS.gov/ Checking on the status of your refund. Form1040X for information and updates. • Go to IRS.gov/Refunds. Checking the status of your amended return. Go to • The IRS can’t issue refunds before mid-February 2021 IRS.gov/WMAR to track the status of Form 1040-X amen- for returns that claimed the EIC or the additional child ded returns. Please note that it can take up to 3 weeks tax credit (ACTC). This applies to the entire refund, from the date you filed your amended return for it to show not just the portion associated with these credits. up in our system, and processing it can take up to 16 weeks. • Download the official IRS2Go app to your mobile de- vice to check your refund status. Understanding an IRS notice or letter you’ve re- • Call the automated refund hotline at 800-829-1954. ceived. Go to IRS.gov/Notices to find additional informa- tion about responding to an IRS notice or letter. Making a tax payment. The IRS uses the latest encryp- tion technology to ensure your electronic payments are Contacting your local IRS office. Keep in mind, many safe and secure. You can make electronic payments on- questions can be answered on IRS.gov without visiting an line, by phone, and from a mobile device using the IRS Taxpayer Assistance Center (TAC). Go to IRS.gov/ IRS2Go app. Paying electronically is quick, easy, and LetUsHelp for the topics people ask about most. If you still faster than mailing in a check or money order. Go to need help, IRS TACs provide tax help when a tax issue IRS.gov/Payments for information on how to make a pay- can’t be handled online or by phone. All TACs now pro- ment using any of the following options. vide service by appointment, so you’ll know in advance that you can get the service you need without long wait • IRS Direct Pay: Pay your individual tax bill or estima- times. Before you visit, go to IRS.gov/TACLocator to find ted tax payment directly from your checking or sav- the nearest TAC and to check hours, available services, ings account at no cost to you. and appointment options. Or, on the IRS2Go app, under • Debit or Credit Card: Choose an approved payment the Stay Connected tab, choose the Contact Us option processor to pay online, by phone, or by mobile de- and click on “Local Offices.” vice.
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51 The Taxpayer Advocate Service (TAS) How Can You Reach TAS? Is Here To Help You TAS has offices in every state, the District of Columbia, What Is TAS? and Puerto Rico. Your local advocate’s number is in your local directory and at TaxpayerAdvocate.IRS.gov/ TAS is an independent organization within the IRS that Contact-Us. You can also call them at 877-777-4778. helps taxpayers and protects taxpayer rights. Their job is to ensure that every taxpayer is treated fairly and that you How Else Does TAS Help Taxpayers? know and understand your rights under the Taxpayer Bill of Rights. TAS works to resolve large-scale problems that affect many taxpayers. If you know of one of these broad issues, How Can You Learn About Your Taxpayer please report it to them at IRS.gov/SAMS. Rights? TAS for Tax Professionals The Taxpayer Bill of Rights describes 10 basic rights that all taxpayers have when dealing with the IRS. Go to TAS can provide a variety of information for tax professio- TaxpayerAdvocate.IRS.gov to help you understand what nals, including tax law updates and guidance, TAS pro- these rights mean to you and how they apply. These are grams, and ways to let TAS know about systemic prob- your rights. Know them. Use them. lems you’ve seen in your practice.
What Can TAS Do For You? Low Income Taxpayer Clinics (LITCs)
TAS can help you resolve problems that you can’t resolve LITCs are independent from the IRS. LITCs represent in- with the IRS. And their service is free. If you qualify for dividuals whose income is below a certain level and need their assistance, you will be assigned to one advocate to resolve tax problems with the IRS, such as audits, ap- who will work with you throughout the process and will do peals, and tax collection disputes. In addition, clinics can everything possible to resolve your issue. TAS can help provide information about taxpayer rights and responsibili- you if: ties in different languages for individuals who speak Eng- lish as a second language. Services are offered for free or • Your problem is causing financial difficulty for you, a small fee for eligible taxpayers. To find a clinic near you, your family, or your business; visit TaxpayerAdvocate.IRS.gov/about/LITC or see IRS • You face (or your business is facing) an immediate Pub. 4134, Low Income Taxpayer Clinic List. threat of adverse action; or • You’ve tried repeatedly to contact the IRS but no one has responded, or the IRS hasn’t responded by the date promised.
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To help us develop a more useful index, please let us know if you have ideas for index entries. Index See “Comments and Suggestions” in the “Introduction” for the ways you can reach us.
Individual taxpayer identification A E numbers (ITINs): Adoption: Earned income: For aliens 3 Taxpayer identification number 3 Dependent care benefits 10 Inmate 4 Aliens 3 For figuring credit 4 Amount of credit 12, 13 Limit on 11 Limit on 13 Net loss 11 L Are These Work-Related Nonworking spouse 4 Limits: Expenses? 6–8 Self-employment earnings 11 Amount of credit 13 Partly work-related expenses 7 Statutory employees 11 Dollar 12 Assistance (See Tax help) What is not 4 Earned income 11 Earned income test 6 Reduced dollar 2, 12 Determination 2 Looking for work 6 C Education expenses 7 Losses 11 Calculation of credit 9–13 Employer-provided dependent care Camp, overnight 7 benefits 2, 10 M Care: Employment taxes 1, 8, 13 Dependent care benefits 2, 10 Married and living apart 8 Exclusion from income: Meals and lodging for Employer-provided benefits 10 Employer-provided dependent care Outside home 7 housekeeper 8 benefits 2, 10 Medical expenses 10 Provider identification 9 Expenses 9 Qualifying person 6 Minister 11 (See also Work-related expenses) Missing children, photographs of 1 Care Provider Identification 2019 expenses paid in 2020 Test 2, 9 (Worksheet A) 14, 15 Children: Education 7 N Divorced or separated parents 3 Medical 10 Nonrefundability of credit 13 Physically or mentally disabled 3 Not for care 7 Not able to care for self: Under age 13 3 Prepaid 9 Qualifying person test 3 Work related expense payments to Reimbursed 10 Spouse 3, 4, 6, 11 relatives 8 Church employee 11 Claiming of credit 13 F O Tests to claim credit 2 Fees 7 Outside of home care 7 Clergy 11 Figures 2 Community property 11 Figuring credit 9–13 Earned income 4 P Filing status: Part of year: D Tests to claim credit 2 Persons qualifying for 3 Death of spouse 9 What’s Your Filing Status? 8 Work or looking for work 6 Dependent care benefits 2, 10 Form 1040 or 1040-SR: Part-time work 6 Dependent care centers 7 Claiming the credit 2, 13 Prepaid expenses 9 Dependent defined 3 Form 2441 13 Prisoner 4 Dependents (See Who Is a Qualifying Form 4029 4 Publications (See Tax help) Person?) Form 4361 4 Deposits 7 Form W-10 9 Disabilities, persons with: Form W-2: Q Dependents 3 Dependent care benefits 10 Qualifying child 3 Physically or mentally not able to Form W-7 3 Qualifying person: care for self 3 Care for 6 Spouse 3, 4, 6, 11 Expenses not for care 7 Divorced parents 3, 4 H Dollar limit 12 Household services 7, 8 Reduced dollar limit 2, 12 Employment taxes 13 R Domestic help 7 Housekeepers 7 Recordkeeping requirements 13 Due diligence 9 Reduced dollar limit 12 Tests to claim credit 2 I Refusal by provider to give Identification of provider 9 information 9
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Reimbursed expenses 10 What’s Your Filing Status? 8, 9 Relatives, payments to 2, 8 T Tests to claim credit 2 Religious faiths opposed to social Taxes on wages (See Employment Who Is a qualifying person? 3, 4 security programs 4 taxes) Tests to claim credit 2 Tax help 16 Withholding: Taxpayer identification number Federal income tax 16 S (TINs) 1, 3 Work-related expenses: School expenses 7 Adoption 3 Earned income limit 11 Self-employed persons 11 Aliens 3 Figuring of credit 9 Separated parents 3, 4, 8 Providers 9 Medical 10 Separated spouse 11 Temporary absence 6 Paid following year 10, 13–15 Sick days 6 Tests to claim credit 2, 10 Partly work-related expenses 7 Social Security 16 Determination 2 Prepaid 9 (See also Employment taxes) Earned income 4 Recordkeeping 13 Religious faiths opposed to 4 Qualifying persons 3 Reimbursed 10 Social security numbers 9 Work-related expenses 6 Work related expense test: Spouse: Transportation 7 Tests to claim credit 2 Both spouses qualifying 11 Worksheets: Death of 9 2019 expenses paid in 2020 Nonworking, earned income 4 U (Worksheet A) 14 Not able to care for self 3, 4, 6, 11 Unearned income 4 Filled-in Worksheet A 15 Qualifying person 3 Separated 11 Student 4, 11 V Y Surviving 11 Vacation 6 You Must Have Earned Income 4 Working 11 Volunteer work 6 Students: Full-time 6 Spouse 4, 11 W Wages, taxes on (See Employment taxes)
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54 Department of the Treasury Contents Internal Revenue Service Future Developments ...... 1 Publication 504 Reminders ...... 1 Cat. No. 15006I Introduction ...... 2
Filing Status ...... 3 Married Filing Jointly ...... 4 Divorced Married Filing Separately ...... 5 Head of Household ...... 6 or Separated Dependents ...... 8 Qualifying Child or Qualifying Relative ...... 8 Individuals Children of Divorced or Separated Parents (or Parents Who Live Apart) ..... 8 Qualifying Child of More Than One For use in preparing Person ...... 11 Returns Alimony ...... 12 2020 General Rules ...... 13 Certain Rules for Instruments Executed After 1984 ...... 14 Alimony Requirements ...... 15 Recapture of Alimony ...... 16 Instruments Executed Before 1985 ...... 17
Qualified Domestic Relations Order ...... 19
Individual Retirement Arrangements ...... 19
Property Settlements ...... 19 Transfer Between Spouses ...... 19 Gift Tax on Property Settlements ...... 22 Gift Tax Return ...... 22 Sale of Jointly Owned Property ...... 22
Costs of Getting a Divorce ...... 23
Tax Withholding and Estimated Tax ...... 23
Community Property ...... 23 Community Income ...... 23 Alimony (Community Income) ...... 25
How To Get Tax Help ...... 26
Index ...... 29
Future Developments For the latest information about developments related to Pub. 504, such as legislation enacted after this publication was published, go to IRS.gov/Pub504.
Reminders Get forms and other information faster and easier at: Change of withholding. The Form W-4 no longer uses • IRS.gov (English) • IRS.gov/Korean (한국어) • IRS.gov/Spanish (Español) • IRS.gov/Russian (Pусский) personal allowances to calculate your income tax with- • IRS.gov/Chinese (中文) • IRS.gov/Vietnamese (TiếngViệt) holding. If you have been claiming a personal allowance
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55 for your spouse, and you divorce or legally separate, you filing information and can help you choose your filing sta- must give your employer a new Form W-4, Employee’s tus. It can also help you decide which benefits you are en- Withholding Certificate, within 10 days after the divorce or titled to claim. separation. For more information on withholding and when The publication also discusses payments and transfers you must furnish a new Form W-4, see Pub. 505, Tax of property that often occur as a result of divorce and how Withholding and Estimated Tax. you must treat them on your tax return. Examples include Divorce or separation instruments after 2018. alimony, child support, other court-ordered payments, Amounts paid as alimony or separate maintenance pay- property settlements, and transfers of individual retire- ments under a divorce or separation instrument executed ment arrangements. In addition, this publication also ex- after 2018 won't be deductible by the payer. Such plains deductions allowed for some of the costs of obtain- amounts also won't be includible in the income of the re- ing a divorce and how to handle tax withholding and cipient. The same is true of alimony paid under a divorce estimated tax payments. or separation instrument executed before 2019 and modi- The last part of the publication explains special rules fied after 2018, if the modification expressly states that the that may apply to persons who live in community property alimony isn't deductible to the payer or includible in the in- states. come of the recipient. Comments and suggestions. We welcome your com- Relief from joint liability. In some cases, one spouse ments about this publication and suggestions for future may be relieved of joint liability for tax, interest, and penal- editions. ties on a joint tax return. For more information, see Relief You can send us comments through IRS.gov/ from joint liability under Married Filing Jointly. FormComments. Or, you can write to the Internal Reve- Social security numbers for dependents. You must in- nue Service, Tax Forms and Publications, 1111 Constitu- clude on your tax return the taxpayer identification number tion Ave. NW, IR-6526, Washington, DC 20224. (generally, the social security number (SSN)) of every de- Although we can’t respond individually to each com- pendent you claim. See Dependents, later. ment received, we do appreciate your feedback and will consider your comments and suggestions as we revise Using and getting an ITIN. The ITIN is entered wher- our tax forms, instructions, and publications. Do not send ever an SSN is requested on a tax return. If you’re re- tax questions, tax returns, or payments to the above ad- quired to include another person's SSN on your return and dress. that person doesn’t have and can’t get an SSN, enter that person's ITIN. The IRS will issue an ITIN to a nonresident Getting answers to your tax questions. If you have or resident alien who doesn’t have and isn’t eligible to get a tax question not answered by this publication or the How an SSN. To apply for an ITIN, file Form W-7, Application To Get Tax Help section at the end of this publication, go for IRS Individual Taxpayer Identification Number, with the to the IRS Interactive Tax Assistant page at IRS.gov/ IRS. Allow 7 weeks for the IRS to notify you of your ITIN Help/ITA where you can find topics by using the search application status (9 to 11 weeks if you submit the applica- feature or viewing the categories listed. tion during peak processing periods (January 15 through Getting tax forms, instructions, and publications. April 30) or if you’re filing from overseas). If you haven't re- Visit IRS.gov/Forms to download current and prior-year ceived your ITIN at the end of that time, you can call the forms, instructions, and publications. IRS to check the status of your application. For more infor- mation, go to IRS.gov/FormW7. Ordering tax forms, instructions, and publications. Change of address. If you change your mailing address, Go to IRS.gov/OrderForms to order current forms, instruc- be sure to notify the IRS. You can use Form 8822, tions, and publications; call 800-829-3676 to order Change of Address. prior-year forms and instructions. The IRS will process your order for forms and publications as soon as possible. Change of name. If you change your name, be sure to Do not resubmit requests you’ve already sent us. You can notify the Social Security Administration using Form SS-5, get forms and publications faster online. Application for a Social Security Card. Photographs of missing children. The IRS is a proud Useful Items partner with the National Center for Missing & Exploited You may want to see: Children® (NCMEC). Photographs of missing children se- lected by the Center may appear in this publication on pa- Publications ges that would otherwise be blank. You can help bring these children home by looking at the photographs and 501 501 Dependents, Standard Deduction, and Filing calling 800-THE-LOST (800-843-5678) if you recognize a Information
child. 544 544 Sales and Other Dispositions of Assets
555 555 Community Property
590-A 590-A Contributions to Individual Retirement Introduction Arrangements (IRAs) This publication explains tax rules that apply if you are di- vorced or separated from your spouse. It covers general
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590-B 590-B Distributions from Individual Retirement However, individuals who have entered into a registered Arrangements (IRAs) domestic partnership, civil union, or other similar relation- ship that isn’t called a marriage under state (or foreign) 971 971 Innocent Spouse Relief law aren’t married for federal tax purposes. For more infor-
974 974 Premium Tax Credit mation, see Pub. 501. Forms (and Instructions) Exception. If you live apart from your spouse, under certain circumstances, you may be considered unmarried
8332 8332 Release/Revocation of Release of Claim to and can file as head of household. See Head of House- Exemption for Child by Custodial Parent hold, later.
8379 8379 Injured Spouse Allocation Health care law considerations. Under the health care 8857 8857 Request for Innocent Spouse Relief law, you must have qualifying health care coverage. See How To Get Tax Help near the end of this publication Qualifying health care coverage (also called minimum for information about getting publications and forms. essential coverage) includes: • Most coverage through government-sponsored pro- grams (including Medicaid coverage, Medicare parts Filing Status A or C, the Children’s Health Insurance Program (CHIP), certain benefits for veterans and their families, Your filing status is used in determining whether you must TRICARE, and health coverage for Peace Corps vol- file a return, your standard deduction, and the correct tax. unteers); It may also be used in determining whether you can claim • Most types of employer-sponsored coverage; certain other deductions and credits. The filing status you can choose depends partly on your marital status on the • Grandfathered health plans; and last day of your tax year. • Other health coverage the Department of Health and Human Services designates as minimum essential Marital status. If you are unmarried, your filing status is coverage. single or, if you meet certain requirements, head of house- hold or qualifying widow(er). If you are married, your filing Your divorce or separation may impact your responsi- status is either married filing a joint return or married filing bilities under the health care law in the following ways. a separate return. For information about the single and • Special Marketplace Enrollment Period. If you lose qualifying widow(er) filing statuses, see Pub. 501, De- your health insurance coverage due to divorce, you pendents, Standard Deduction, and Filing Information. are still required to have coverage for every month of Unmarried persons. You are unmarried for the whole the year for yourself and the dependents you can year if either of the following applies. claim on your tax return. Losing coverage through a divorce is considered a qualifying life event that allows • You have obtained a final decree of divorce or sepa- you to enroll in health coverage through the Health In- rate maintenance by the last day of your tax year. You surance Marketplace during a Special Enrollment Pe- must follow your state law to determine if you are di- riod. vorced or legally separated. Exception. If you and your spouse obtain a di- • Changes in Circumstances. If you purchase health vorce in one year for the sole purpose of filing tax re- insurance coverage through the Health Insurance turns as unmarried individuals, and at the time of di- Marketplace, you may get advance payments of the vorce you intend to remarry each other and do so in premium tax credit in 2020. If you do, you should re- the next tax year, you and your spouse must file as port changes in circumstances to your Marketplace married individuals. throughout the year. Changes to report include a change in marital status, a name change, and a • You have obtained a decree of annulment, which change in your income or family size. By reporting holds that no valid marriage ever existed. You must changes, you will help make sure that you get the file amended returns (Form 1040-X, Amended U.S. In- proper type and amount of financial assistance. This dividual Income Tax Return) for all tax years affected will also help you avoid getting too much or too little by the annulment that aren’t closed by the statute of credit in advance. limitations. The statute of limitations generally doesn’t end until 3 years (including extensions) after the date • Shared Policy Allocation. If you divorced or are le- you file your original return or within 2 years after the gally separated during the tax year and are enrolled in date you pay the tax. On the amended return, you will the same qualified health plan, you and your former change your filing status to single or, if you meet cer- spouse must allocate policy amounts on your sepa- tain requirements, head of household. rate tax returns to figure your premium tax credit and reconcile any advance payments made on your be- Married persons. You are married for the whole year half. The Instructions for Form 8962, Premium Tax if you are separated but you haven’t obtained a final de- Credit, has more information about the Shared Policy cree of divorce or separate maintenance by the last day of Allocation. your tax year. An interlocutory decree isn’t a final decree.
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57 Married Filing Jointly Each kind of relief has different requirements. You must file Form 8857 to request relief under any of these catego- If you are married, you and your spouse can choose to file ries. Pub. 971 explains these kinds of relief and who may a joint return. If you file jointly, you both must include all qualify for them. You can also find information on our web- your income, deductions, and credits on that return. You site at IRS.gov. can file a joint return even if one of you had no income or deductions. Tax refund applied to spouse's debts. The overpay- ment shown on your joint return may be used to pay the If both you and your spouse have income, you past-due amount of your spouse's debts. This includes TIP usually should figure your tax on both a joint re- your spouse's federal tax, state income tax, child or turn and separate returns (using the filing status spousal support payments, or a federal nontax debt, such of married filing separately) to see which gives the two of as a student loan. You can get a refund of your share of you the lower combined tax. the overpayment if you qualify as an injured spouse.
Nonresident alien. To file a joint return, at least one of Injured spouse. You are an injured spouse if you file a joint you must be a U.S. citizen or resident alien at the end of return and all or part of your share of the overpay- the tax year. If either of you was a nonresident alien at any ment was, or is expected to be, applied against your time during the tax year, you can file a joint return only if spouse's past-due debts. An injured spouse can get a re- you agree to treat the nonresident spouse as a resident of fund for his or her share of the overpayment that would the United States. This means that your combined world- otherwise be used to pay the past-due amount. wide incomes are subject to U.S. income tax. These rules To be considered an injured spouse, you must: are explained in Pub. 519, U.S. Tax Guide for Aliens. 1. Have made and reported tax payments (such as fed- eral income tax withheld from wages or estimated tax Signing a joint return. Both you and your spouse must payments), or claimed a refundable tax credit, such generally sign the return, or it won't be considered a joint as the earned income credit or additional child tax return. credit on the joint return and Joint and individual liability. Both you and your spouse 2. Not be legally obligated to pay the past-due amount. may be held responsible, jointly and individually, for the tax and any interest or penalty due on your joint return. If the injured spouse's permanent home is in a com- This means that one spouse may be held liable for all the munity property state, then the injured spouse must only tax due even if all the income was earned by the other meet (2). For more information, see Pub. 555. spouse. If you are an injured spouse, you must file Form 8379 to have your portion of the overpayment refunded to you. Divorced taxpayers. If you are divorced, you are Follow the instructions for the form. jointly and individually responsible for any tax, interest, If you haven’t filed your joint return and you know that and penalties due on a joint return for a tax year ending your joint refund will be offset, file Form 8379 with your re- before your divorce. This responsibility applies even if turn. You should receive your refund within 14 weeks from your divorce decree states that your former spouse will be the date the paper return is filed or within 11 weeks from responsible for any amounts due on previously filed joint the date the return is filed electronically. returns. If you filed your joint return and your joint refund was offset, file Form 8379 by itself. When filed after offset, it Relief from joint liability. In some cases, a spouse can take up to 8 weeks to receive your refund. Don’t at- may be relieved of the tax, interest, and penalties on a tach the previously filed tax return, but do include copies joint return. You can ask for relief no matter how small the of all Forms W-2, Wage and Tax Statement, and W-2G, liability. Certain Gambling Winnings, for both spouses and any There are three types of relief available. Forms 1099 that show income tax withheld. • Innocent spouse relief. An injured spouse claim is different from an inno- • Separation of liability, which applies to joint filers who cent spouse relief request. An injured spouse are divorced, widowed, legally separated, or who CAUTION! uses Form 8379 to request an allocation of the tax haven’t lived together for the 12 months ending on the overpayment attributed to each spouse. An innocent date election of this relief is filed. spouse uses Form 8857 to request relief from joint liability • Equitable relief. for tax, interest, and penalties on a joint return for items of the other spouse (or former spouse) that were incorrectly reported on or omitted from the joint return. For informa- Married persons who live in community property states, tion on innocent spouses, see Relief from joint liability, but who didn’t file joint returns, may also qualify for relief earlier. from liability for tax attributable to an item of community in- come or for equitable relief. See Relief from liability for tax attributable to an item of community income, later, under Community Property.
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58 Table 1. Itemized Deductions on Separate Returns This table shows itemized deductions you can claim on your married filing separate return whether you paid the expenses separately with your own funds or jointly with your spouse. Caution: If you live in a community property state, these rules don’t apply. See Community Property.
THEN you can deduct on your IF you paid ... AND you ... separate federal return ... medical expenses paid with funds deposited in a joint checking half of the total medical expenses, account in which you and your spouse have subject to certain limits, unless you can an equal interest show that you alone paid the expenses. state income tax file a separate state income tax return the state income tax you alone paid during the year. file a joint state income tax return and you and the state income tax you alone paid your spouse are jointly and individually liable during the year. for the full amount of the state income tax file a joint state income tax return and you are the smaller of: liable for only your own share of state income • the state income tax you alone tax paid during the year or • the total state income tax you and your spouse paid during the year multiplied by the following fraction. The numerator is your gross income and the denominator is your combined gross income. property tax paid the tax on property held as tenants by the property tax you alone paid. the entirety mortgage interest paid the interest on a qualified home1 held as the mortgage interest you alone paid. tenants by the entirety casualty loss have a casualty loss2 resulting from a half of the loss, subject to the federally declared disaster on a home you deduction limits. Neither spouse may own as tenants by the entirety report the total casualty loss.
1 For more information on a qualified home and deductible mortgage interest, see Pub. 936, Home Mortgage Interest Deduction. 2 For more information on casualty losses, see Pub. 547, Casualties, Disasters and Thefts. Married Filing Separately expenses that you paid separately or jointly with your spouse. See Table 1. If you and your spouse file separate returns, you should each report only your own income, deductions, and cred- Separate returns may give you a higher tax. Some its on your individual return. You can file a separate return married couples file separate returns because each wants even if only one of you had income. to be responsible only for his or her own tax. There is no joint liability. But in almost all instances, if you file separate Community or separate income. If you live in a com- returns, you will pay more combined federal tax than you munity property state and file a separate return, your in- would with a joint return. This is because the following come may be separate income or community income for special rules apply if you file a separate return. Com- income tax purposes. For more information, see 1. Your tax rate is generally higher than it would be on a munity Income under Community Property, later. joint return. Separate liability. If you and your spouse file separately, 2. Your exemption amount for figuring the alternative you each are responsible only for the tax due on your own minimum tax is half of that allowed on a joint return. return. 3. You can’t take the credit for child and dependent care Itemized deductions. If you and your spouse file sepa- expenses in most cases, and the amount you can ex- rate returns and one of you itemizes deductions, the other clude from income under an employer's dependent spouse can’t use the standard deduction and should also care assistance program is limited to $2,500 (instead itemize deductions. of $5,000 on a joint return). If you are legally separa- ted or living apart from your spouse, you may be able Dividing itemized deductions. You may be able to to file a separate return and still take the credit. See claim itemized deductions on a separate return for certain Pub. 503 for more information.
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59 4. You can’t take the earned income credit. • Your tax rate will ususallybe lower than it is if you claim a filing status of single or married filing sepa- 5. You can’t take the exclusion or credit for adoption ex- rately. penses in most cases. • You may be able to claim certain credits (such as the 6. You can’t exclude the interest from qualified savings dependent care credit and the earned income credit) bonds that you used for higher education expenses. you can’t claim if your filing status is married filing sep- 7. If you lived with your spouse at any time during the tax arately. year: • Income limits that reduce your child tax credit and a. You can’t claim the credit for the elderly or the dis- your retirement savings contributions credit, for exam- abled, and ple, are higher than the income limits if you claim a fil- ing status of married filing separately. b. You will have to include in income a higher per- centage (up to 85%) of any social security or Requirements. You may be able to file as head of equivalent railroad retirement benefits you re- household if you meet all of the following requirements. ceived. • You are unmarried or “considered unmarried” on the 8. The following credits and deductions are reduced at last day of the year. income levels that are half those for a joint return. • You paid more than half the cost of keeping up a a. The child tax credit. home for the year. b. The retirement savings contributions credit. • A “qualifying person” lived with you in the home for more than half the year (except for temporary absen- 9. Your capital loss deduction limit is $1,500 (instead of ces, such as school). However, if the “qualifying per- $3,000 on a joint return). son” is your dependent parent, he or she doesn’t have 10. If your spouse itemizes deductions, you can’t claim to live with you. See Special rule for parent, later, un- the standard deduction. If you can claim the standard der Qualifying person. deduction, your basic standard deduction is half the Considered unmarried. You are considered unmarried amount allowed on a joint return. on the last day of the tax year if you meet all of the follow- 11. You can’t take the credit for higher education expen- ing tests. ses (American opportunity and lifetime learning cred- • You file a separate return. A separate return includes its), the deduction for student loan interest, or the tui- a return claiming married filing separately, single, or tion and fees deduction. head of household filing status. Joint return after separate returns. If either you or your • You paid more than half the cost of keeping up your spouse (or both of you) file a separate return, you can home for the tax year. generally change to a joint return within 3 years from the Your spouse didn’t live in your home during the last 6 due date (not including extensions) of the separate return • months of the tax year. Your spouse is considered to or returns. This applies to a return either of you filed claim- live in your home even if he or she is temporarily ab- ing married filing separately, single, or head of household sent due to special circumstances. See Temporary filing status. Use Form 1040-X to change your filing status. absences, later. Separate returns after joint return. After the due date • Your home was the main home of your child, step- of your return, you and your spouse can’t file separate re- child, or foster child for more than half the year. (See turns if you previously filed a joint return. Qualifying person, later, for rules applying to a child's Exception. A personal representative for a decedent birth, death, or temporary absence during the year.) can change from a joint return elected by the surviving • You must be able to claim the child as a dependent. spouse to a separate return for the decedent. The per- However, you meet this test if you can’t claim the child sonal representative has 1 year from the due date (includ- as a dependent only because the noncustodial parent ing extensions) of the joint return to make the change. can claim the child. The general rules for claiming a dependent are shown in Table 3. Head of Household If you were considered married for part of the year and lived in a community property state (one of Filing as head of household has the following advantages. CAUTION! the states listed later under Community Property), • You can claim the standard deduction even if your special rules may apply in determining your income and spouse files a separate return and itemizes deduc- expenses. See Pub. 555 for more information. tions. Nonresident alien spouse. If your spouse was a non- Your standard deduction is higher than is allowed if • resident alien at any time during the tax year, and you you claim a filing status of single or married filing sep- haven’t chosen to treat your spouse as a resident alien, arately. you are considered unmarried for head of household
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60 Table 2. Who Is a Qualifying Person Qualifying You To File as Head of Household?1 Caution. See the text of this publication for the other requirements you must meet to claim head of household filing status.
IF the person is your ... AND ... THEN that person is ... qualifying child (such as a son, he or she is single a qualifying person, whether or not the daughter, or grandchild who lived child meets the Citizen or Resident with you more than half the year Test, described in Pub. 501. and meets certain other tests)2 he or she is married and you can claim him or a qualifying person. her as a dependent he or she is married and you can’t claim him or not a qualifying person.3 her as a dependent qualifying relative4 who is your you can claim him or her as a dependent5 a qualifying person.6 father or mother you can’t claim him or her as a dependent not a qualifying person. qualifying relative4 other than your he or she lived with you more than half the a qualifying person. father or mother (such as a year, and he or she is related to you in one of grandparent, brother, or sister who the ways listed under Relatives who don't have meets certain tests) to live with you in Pub. 501 and you can claim him or her as a dependent5 he or she didn’t live with you more than half the not a qualifying person. year he or she isn’t related to you in one of the ways not a qualifying person. listed under Relatives who don’t have to live with you in Pub. 501 and is your qualifying relative only because he or she lived with you all year as a member of your household you can’t claim him or her as a dependent not a qualifying person.
1 A person can’t qualify more than one taxpayer to use the head of household filing status for the year. 2 See Table 3 for the tests that must be met to be a qualifying child. Note. If you are a noncustodial parent, the term “qualifying child” for head of household filing status doesn’t include a child who is your qualifying child only because of the rules described under Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Child, later. If you are the custodial parent and those rules apply, the child is generally your qualifying child for head of household filing status even though you can’t claim the child as a dependent. 3 This person is a qualifying person if the only reason you can’t claim them as a dependent is because you can be claimed as a dependent on someone else's return. 4 See Table 3 for the tests that must be met to be a qualifying relative. 5 If you can claim a person as a dependent only because of a multiple support agreement, that person isn’t a qualifying person. See Multiple Support Agreement in Pub. 501. 6 See Special rule for parent. purposes. However, your spouse isn’t a qualifying person Generally, the qualifying person must live with you for for head of household purposes. You must have another more than half of the year. qualifying person and meet the other requirements to file Special rule for parent. If your qualifying person is as head of household. your father or mother, you may be eligible to file as head Keeping up a home. You are keeping up a home only if of household even if your father or mother doesn't live with you pay more than half the cost of its upkeep for the year. you. However, you must be able to claim your father or This includes rent, mortgage interest, real estate taxes, in- mother as a dependent. Also, you must pay more than surance on the home, repairs, utilities, and food eaten in half the cost of keeping up a home that was the main the home. This doesn’t include the cost of clothing, edu- home for the entire year for your father or mother. cation, medical treatment, vacations, life insurance, or You are keeping up a main home for your father or transportation for any member of the household. mother if you pay more than half the cost of keeping your parent in a rest home or home for the elderly. Qualifying person. Table 2 shows who can be a qualify- Death or birth. If the person for whom you kept up a ing person. Any person not described in Table 2 isn't a home was born or died in 2020, you may still be able to qualifying person. file as head of household. If the person is your qualifying
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61 child, the child must have lived with you for more than half You may be entitled to a child tax credit for each the part of the year he or she was alive. If the person is TIP qualifying child who was under age 17 at the end anyone else, see Pub. 501. of the year if you claimed that child as a depend- ent. If you can't claim the child tax credit for a child who is Temporary absences. You and your qualifying per- an eligible dependent, you may be able to claim the credit son are considered to live together even if one or both of for other dependents instead. See the Instructions for you are temporarily absent from your home due to special Forms 1040 and 1040-SR for details. circumstances such as illness, education, business, vaca- tion, military service, or detention in a juvenile facility. It must be reasonable to assume that the absent person will Children of Divorced or Separated Parents return to the home after the temporary absence. You must (or Parents Who Live Apart) continue to keep up the home during the absence. In most cases, because of the residency test (see item 3 Kidnapped child. You may be eligible to file as head under Tests To Be a Qualifying Child in Table 3), a child of of household even if the child who is your qualifying per- divorced or separated parents is the qualifying child of the son has been kidnapped. You can claim head of house- custodial parent. However, the child will be treated as the hold filing status if all of the following statements are true. qualifying child of the noncustodial parent if the rule for • The child is presumed by law enforcement authorities children of divorced or separated parents (or parents who to have been kidnapped by someone who isn’t a live apart) applies. member of your family or the child's family. Children of divorced or separated parents (or pa- • In the year of the kidnapping, the child lived with you rents who live apart). A child will be treated as the qual- for more than half the part of the year before the kid- ifying child of his or her noncustodial parent if all four of napping. the following statements are true. In the year of the child’s return, the child lived with you • 1. The parents: for more than half the part of the year following the date of the child’s return. a. Are divorced or legally separated under a decree • You would have qualified for head of household filing of divorce or separate maintenance, status if the child hadn’t been kidnapped. b. Are separated under a written separation agree- This treatment applies for all years until the earliest of: ment, or 1. The year the child is returned, c. Lived apart at all times during the last 6 months of the year, whether or not they are or were married. 2. The year there is a determination that the child is dead, or 2. The child received over half of his or her support for the year from the parents. 3. The year the child would have reached age 18. 3. The child is in the custody of one or both parents for For more information on filing as head of household, more than half of the year. see Pub. 501. 4. Either of the following applies. a. The custodial parent signs a written declaration, Dependents discussed later, that he or she won't claim the child as a dependent for the year, and the noncus- todial parent attaches this written declaration to Qualifying Child or Qualifying his or her return. (If the decree or agreement went Relative into effect after 1984, see Divorce decree or sepa- ration agreement that went into effect after 1984 The term “dependent” means: and before 2009, or Post-2008 divorce decree or • A qualifying child, or separation agreement, later). • A qualifying relative. b. A pre-1985 decree of divorce or separate mainte- nance or written separation agreement that ap- Table 3 shows the tests that must be met to be either a plies to 2020 states that the noncustodial parent qualifying child or qualifying relative, plus the additional can claim the child as a dependent, the decree or requirements for claiming a dependent. For detailed infor- agreement wasn’t changed after 1984 to say the mation, see Pub. 501. noncustodial parent can’t claim the child as a de- pendent, and the noncustodial parent provides at least $600 for the child's support during the year. See Child support under pre-1985 agreement, later. Custodial parent and noncustodial parent. The custodial parent is the parent with whom the child lived for
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62 Table 3. Overview of the Rules for Claiming a Dependent Caution. This table is only an overview of the rules. For details, see Pub. 501.
• You can’t claim any dependents if you, or your spouse if filing jointly, could be claimed as a dependent by another taxpayer.
• You can’t claim a married person who files a joint return as a dependent unless that joint return is filed only to claim a refund of withheld income tax or estimated tax paid.
• You can’t claim a person as a dependent unless that person is a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico.1
• You can’t claim a person as a dependent unless that person is your qualifying child or qualifying relative.
Tests To Be a Qualifying Child Tests To Be a Qualifying Relative
1. The child must be your son, daughter, stepchild, foster 1. The person can’t be your qualifying child or the qualifying child, brother, sister, half brother, half sister, stepbrother, child of anyone else. stepsister, or a descendant of any of them. 2. The person either (a) must be related to you in one of the 2. The child must be (a) under age 19 at the end of the year ways listed under Relatives who don't have to live with you and younger than you (or your spouse if filing jointly), (b) in Pub. 501, or (b) must live with you all year as a member under age 24 at the end of the year, a student, and of your household 2 (and your relationship must not violate younger than you (or your spouse if filing jointly), or (c) any local law). age if permanently and totally disabled. 3. The person's gross income for the year must be less than 3. The child must have lived with you for more than half of the $4,300.3 year.2 4. You must provide more than half of the person's total 4. The child must not have provided more than half of his or support for the year.4 her own support for the year. A person isn't a qualifying relative unless he or she meets 5. The child must not be filing a joint return for the year items (1) through (4). (unless that joint return is filed only to claim a refund of withheld income tax or estimated tax paid).
A child isn't a qualifying child unless he or she meets items (1) through (5).
If the child meets the rules to be a qualifying child of more than one person, only one person can actually treat the child as a qualifying child. See Qualifying Child of More Than One Person, later, to find out which person is the person entitled to claim the child as a qualifying child.
1 An exception exists for certain adopted children. 2 Exceptions exist for temporary absences, children who were born or died during the year, children of divorced or separated parents (or parents who live apart), and kidnapped children. 3 An exception exists for persons who are disabled and have income from a sheltered workshop. 4 Exceptions exist for multiple support agreements, children of divorced or separated parents (or parents who live apart), and kidnapped children. See Pub. 501. the greater number of nights during the year. The other • In the company of the parent, when the child doesn’t parent is the noncustodial parent. sleep at a parent's home (for example, the parent and If the parents divorced or separated during the year child are on vacation together). and the child lived with both parents before the separa- Equal number of nights. If the child lived with each tion, the custodial parent is the one with whom the child parent for an equal number of nights during the year, the lived for the greater number of nights during the rest of the custodial parent is the parent with the higher adjusted year. gross income. A child is treated as living with a parent for a night if the child sleeps: December 31. The night of December 31 is treated as • At that parent's home, whether or not the parent is part of the year in which it begins. For example, the night present, or of December 31, 2020, is treated as part of 2020.
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63 Emancipated child. If a child is emancipated under from June 1, 2020, through the end of the year. She turns state law, the child is treated as not living with either pa- 18 and is emancipated under state law on August 1, 2020. rent. See Examples 5 and 6. Because she is treated as not living with either parent be- ginning on August 1, she is treated as living with you the Absences. If a child wasn’t with either parent on a par- greater number of nights in 2020. You are the custodial ticular night (because, for example, the child was staying parent. at a friend's house), the child is treated as living with the parent with whom the child normally would have lived for Written declaration. The custodial parent must use that night, except for the absence. But if it can’t be deter- either Form 8332 or a similar statement (containing the mined with which parent the child normally would have same information required by the form) to make a written lived or if the child wouldn’t have lived with either parent declaration to release a claim to an exemption for a child that night, the child is treated as not living with either pa- to the noncustodial parent. Although the exemption rent that night. amount is zero for tax year 2020, this release allows the noncustodial parent to claim the child tax credit, additional Parent works at night. If, due to a parent's nighttime child tax credit, and credit for other dependents, if applica- work schedule, a child lives for a greater number of days ble, for the child. The noncustodial parent must attach a but not nights with the parent who works at night, that pa- copy of the form or statement to his or her tax return each rent is treated as the custodial parent. On a school day, year the custodial parent releases his or her claims. the child is treated as living at the primary residence regis- The release can be for 1 year, for a number of specified tered with the school. years (for example, alternate years), or for all future years, Example 1—child lived with one parent for a as specified in the declaration. greater number of nights. You and your child’s other Form 8332 doesn't apply to other tax benefits, parent are divorced. In 2020, your child lived with you 210 such as the earned income credit, dependent nights and with the other parent 156 nights. You are the CAUTION! care credit, or head of household filing status. custodial parent. See Pub. 501.
Example 2—child is away at camp. In 2020, your Divorce decree or separation agreement that went daughter lives with each parent for alternate weeks. In the into effect after 1984 and before 2009. If the divorce summer, she spends 6 weeks at summer camp. During decree or separation agreement went into effect after the time she is at camp, she is treated as living with you 1984 and before 2009, the noncustodial parent may be for 3 weeks and with her other parent, your ex-spouse, for able to attach certain pages from the decree or agreement 3 weeks because this is how long she would have lived instead of Form 8332. The decree or agreement must with each parent if she hadn’t attended summer camp. state all three of the following. Example 3—child lived same number of days with 1. The noncustodial parent can claim the child as a de- each parent. Your son lived with you 180 nights during pendent without regard to any condition, such as pay- the year and lived the same number of nights with his ment of support. other parent, your ex-spouse. Your adjusted gross income is $40,000. Your ex-spouse's adjusted gross income is 2. The custodial parent won't claim the child as a de- $25,000. You are treated as your son's custodial parent pendent for the year. because you have the higher adjusted gross income. 3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a de- Example 4—child is at parent’s home but with pendent. other parent. Your son normally lives with you during the week and with his other parent, your ex-spouse, every The noncustodial parent must attach all of the following other weekend. You become ill and are hospitalized. The pages of the decree or agreement to his or her return. other parent lives in your home with your son for 10 con- • The cover page (write the other parent's SSN on this secutive days while you are in the hospital. Your son is page). treated as living with you during this 10-day period be- cause he was living in your home. • The pages that include all of the information identified in items (1) through (3) above. Example 5—child emancipated in May. When your • The signature page with the other parent's signature son turned age 18 in May 2020, he became emancipated and the date of the agreement. under the law of the state where he lives. As a result, he isn’t considered in the custody of his parents for more Post-2008 divorce decree or separation agree- than half of the year. The special rule for children of di- ment. If the decree or agreement went into effect after vorced or separated parents (or parents who live apart) 2008, a noncustodial parent claiming a child as a depend- doesn’t apply. ent can’t attach pages from a divorce decree or separa- tion agreement instead of Form 8332. The custodial pa- Example 6—child emancipated in August. Your rent must sign either a Form 8332 or a similar statement. daughter lives with you from January 1, 2020, until May The only purpose of this statement must be to release the 31, 2020, and lives with her other parent, your ex-spouse, custodial parent's claim to an exemption. The
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64 noncustodial parent must attach a copy to his or her re- Sometimes, a child meets the relationship, age, resi- turn. The form or statement must release the custodial pa- dency, support, and joint return tests to be a qualifying rent's claim to the child without any conditions. For exam- child of more than one person. (For a description of these ple, the release must not depend on the noncustodial tests, see list items 1 through 5 under Tests To Be a Qual- parent paying support. ifying Child in Table 3). Although the child meets the con- ditions to The noncustodial parent must attach the required be a qualifying child of each of these persons, information even if it was filed with a return in an only one person can actually claim the child as a qualify- ing child to take the following tax benefits (provided the CAUTION! earlier year. person is eligible). Revocation of release of claim to an exemption. 1. The child tax credit, the credit for other dependents, The custodial parent can revoke a release of claim to an and the additional child tax credit. exemption that he or she previously released to the non- custodial parent. For the revocation to be effective for 2. Head of household filing status. 2020, the custodial parent must have given (or made rea- 3. The credit for child and dependent care expenses. sonable efforts to give) written notice of the revocation to the noncustodial parent in 2019 or earlier. The custodial 4. The exclusion from income for dependent care bene- parent can use Part III of Form 8332 for this purpose and fits. must attach a copy of the revocation to his or her return for 5. The earned income credit. each tax year he or she claims the child as a dependent as a result of the revocation. In other words, you and the other person can’t agree to Remarried parent. If you remarry, the support provi- divide these tax benefits between you. ded by your new spouse is treated as provided by you. Tiebreaker rules. To determine which person can treat Child support under pre-1985 agreement. All child the child as a qualifying child to claim these tax benefits, support payments actually received from the noncustodial the following tiebreaker rules apply. parent under a pre-1985 agreement are considered used • If only one of the persons is the child's parent, the for the support of the child. child is treated as the qualifying child of the parent. Example. Under a pre-1985 agreement, the noncusto- • If the parents file a joint return together and can claim dial parent provides $1,200 for the child's support. This the child as a qualifying child, the child is treated as amount is considered support provided by the noncusto- the qualifying child of the parents. dial parent even if the $1,200 was actually spent on things • If the parents don’t file a joint return together but both other than support. parents claim the child as a qualifying child, the IRS Parents who never married. This rule for divorced or will treat the child as the qualifying child of the parent separated parents also applies to parents who never mar- with whom the child lived for the longer period of time ried and lived apart at all times during the last 6 months of during the year. If the child lived with each parent for the year. the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher Alimony. Payments to your spouse that are includible adjusted gross income (AGI) for the year. in his or her gross income as either alimony, separate maintenance payments, or similar payments from an es- • If no parent can claim the child as a qualifying child, tate or trust aren’t treated as a payment for the support of the child is treated as the qualifying child of the person a dependent. who had the highest AGI for the year. • If a parent can claim the child as a qualifying child but Qualifying Child of More Than One Person no parent claims the child, the child is treated as the qualifying child of the person who had the highest AGI If your qualifying child isn’t a qualifying child of for the year, but only if that person's AGI is higher than TIP anyone else, this topic doesn’t apply to you and the highest AGI of any of the child's parents who can you don’t need to read about it. This also is true if claim the child. See Pub. 501 for details. your qualifying child isn’t a qualifying child of anyone else except your spouse with whom you plan to file a joint re- Subject to these tiebreaker rules, you and the other turn. person may be able to choose which of you claims the child as a qualifying child. If a child is treated as the qualifying child of the You may be able to qualify for the earned income credit noncustodial parent under the rules for Children under the rules for taxpayers without a qualifying child if of divorced or separated parents (or parents who you have a qualifying child for the earned income credit live apart), earlier, see Applying the tiebreaker rules to di- who is claimed as a qualifying child by another taxpayer. vorced or separated parents (or parents who live apart), For more information, see Pub. 596. later. Example 1—separated parents. You, your husband, and your 10-year-old son lived together until August 1, 2020, when your husband moved out of the household. In
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August and September, your son lived with you. For the Under the rules for children of divorced or separated rest of the year, your son lived with your husband, the parents (or parents who live apart), your son is treated as boy's father. Your son is a qualifying child of both you and the qualifying child of his father, who can claim the child your husband because your son lived with each of you for tax credit for the child if he meets all the requirements to more than half the year and because he met the relation- do so. Because of this, you can't claim the child tax credit ship, age, support, and joint return tests for both of you. At for your son. However, your son's father can’t claim your the end of the year, you and your husband still weren't di- son as a qualifying child for head of household filing sta- vorced, legally separated, or separated under a written tus, the credit for child and dependent care expenses, the separation agreement, so the rule for children of divorced exclusion for dependent care benefits, or the earned in- or separated parents (or parents who live apart) doesn't come credit. apply. You and your mother didn’t have any childcare expen- You and your husband will file separate returns. Your ses or dependent care benefits, but the boy is a qualifying husband agrees to let you treat your son as a qualifying child of both you and your mother for head of household child. This means, if your husband doesn’t claim your son filing status and the earned income credit because he as a qualifying child, you can claim your son as a depend- meets the relationship, age, residency, support, and joint ent and treat him as a qualifying child for the child tax return tests for both you and your mother. (Note: The sup- credit and exclusion for dependent care benefits, if you port test doesn’t apply for the earned income credit.) How- qualify for each of those tax benefits. However, you can’t ever, you agree to let your mother claim your son. This claim head of household filing status because you and means she can claim him for head of household filing sta- your husband didn’t live apart the last 6 months of the tus and the earned income credit if she qualifies for each year. And, as a result of your filing status being married fil- and if you don’t claim him as a qualifying child for the ing separately, you can’t claim the earned income credit earned income credit. (You can’t claim head of household or the credit for child and dependent care expenses. filing status because your mother paid the entire cost of keeping up the home.) Example 2—separated parents claim same child. The facts are the same as in Example 1 except that you Example 2. The facts are the same as in Example 1 and your husband both claim your son as a qualifying except that your AGI is $25,000 and your mother's AGI is child. In this case, only your husband will be allowed to $21,000. Your mother can’t claim your son as a qualifying treat your son as a qualifying child. This is because, dur- child for any purpose because her AGI isn't higher than ing 2020, the boy lived with him longer than with you. If yours. you claimed the child tax credit for your son, the IRS will disallow your claim to the child tax credit. If you don’t have Example 3. The facts are the same as in Example 1 another qualifying child or dependent, the IRS will also except that you and your mother both claim your son as a disallow your claim to the exclusion for dependent care qualifying child for the earned income credit. Your mother benefits. In addition, because you and your husband also claims him as a qualifying child for head of household didn’t live apart the last 6 months of the year, your hus- filing status. You, as the child's parent, will be the only one band can’t claim head of household filing status. And, as a allowed to claim your son as a qualifying child for the result of his filing status being married filing separately, he earned income credit. The IRS will disallow your mother's can’t claim the earned income credit or the credit for child claim to the earned income credit and head of household and dependent care expenses. filing status unless she has another qualifying child.
Applying the tiebreaker rules to divorced or separa- ted parents (or parents who live apart). If a child is Alimony treated as the qualifying child of the noncustodial parent under the rules for children of divorced or separated pa- Amounts paid as alimony or separate mainte- rents (or parents who live apart) described earlier, only the nance payments under a divorce or separation in- noncustodial parent can claim the child tax credit or the CAUTION! strument executed after 2018 won't be deductible credit for other dependents for the child. However, the by the payer. Such amounts also won't be includible in the custodial parent, if eligible, or other eligible person can income of the recipient. The same is true of alimony paid claim the child as a qualifying child for head of household under a divorce or separation instrument executed before filing status, the credit for child and dependent care ex- 2019 and modified after 2018, if the modification ex- penses, the exclusion for dependent care benefits, and pressly states that the alimony isn't deductible to the the earned income credit. If the child is the qualifying child payer or includible in the income of the recipient. See Cer- of more than one person for those tax benefits, the tie- tain Rules for Instruments Executed or Modified After breaker rules determine which person can treat the child 2018 ,later. as a qualifying child. Alimony is a payment to or for a spouse or former Example 1. You and your 5-year-old son lived all year spouse under a divorce or separation instrument. It with your mother, who paid the entire cost of keeping up doesn’t include voluntary payments that aren’t made un- the home. Your AGI is $10,000. Your mother's AGI is der a divorce or separation instrument. $25,000. Your son's father doesn't live with you or your son.
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Alimony is deductible by the payer, and the recipient You must use Form 1040 or 1040-SR to deduct ali- must include it in income. Although this discussion is gen- mony you paid. You can’t use Form 1040-NR. Enter the erally written for the payer of the alimony, the recipient can amount of alimony you paid on Schedule 1 (Form 1040), also use the information to determine whether an amount line 18a. In the space provided on line 18b, enter your re- received is alimony. cipient’s SSN or ITIN. To be alimony, a payment must meet certain require- If you paid alimony to more than one person, enter the ments. There are some differences between the require- SSN or ITIN of one of the recipients. Show the SSN or ments that apply to payments under instruments executed ITIN and amount paid to each other recipient on an at- after 1984 and to payments under instruments executed tached statement. Enter your total payments on line 18a. before 1985. General alimony requirements and specific If you don’t provide your spouse's SSN or ITIN, requirements that apply to post-1984 instruments (and, in you may have to pay a $50 penalty and your de- certain cases, some pre-1985 instruments) are discussed CAUTION! duction may be disallowed. in this publication. See Instruments Executed Before 1985, later, if you are looking for information on where to find the specific requirements that apply to pre-1985 in- Reporting alimony received. Report alimony you re- struments. ceived as income on Schedule 1 (Form 1040), line 2a. You can’t use Form 1040-NR-EZ. Spouse or former spouse. Unless otherwise stated, the You must give the person who paid the alimony term “spouse” includes former spouse. your SSN or ITIN. If you don’t, you may have to pay a $50 penalty. Divorce or separation instrument. The term “divorce or separation instrument” means: Withholding on nonresident aliens. If you are a U.S. • A decree of divorce or separate maintenance or a writ- citizen or resident alien and you pay alimony to a nonresi- ten instrument incident to that decree, dent alien spouse, you may have to withhold income tax • A written separation agreement, or at a rate of 30% on each payment. However, many tax treaties provide for an exemption from withholding for ali- • A decree or any type of court order requiring a spouse mony payments. For more information, see Pub. 515, to make payments for the support or maintenance of Withholding of Tax on Nonresident Aliens and Foreign En- the other spouse. This includes a temporary decree, tities. an interlocutory (not final) decree, and a decree of ali- mony pendente lite (while awaiting action on the final decree or agreement). General Rules Invalid decree. Payments under a divorce decree can The following rules apply to alimony. be alimony even if the decree's validity is in question. A di- vorce decree is valid for tax purposes until a court having Payments not alimony. Not all payments under a di- proper jurisdiction holds it invalid. vorce or separation instrument are alimony. Alimony doesn’t include: Amended instrument. An amendment to a divorce decree may change the nature of your payments. Amend- • Child support, ments aren’t ordinarily retroactive for federal tax purpo- • Noncash property settlements, ses. However, a retroactive amendment to a divorce de- Payments that are your spouse's part of community in- cree correcting a clerical error to reflect the original intent • come, as explained later under Community Property, of the court will generally be effective retroactively for fed- eral tax purposes. • Payments to keep up the payer's property, or
Example 1. A court order retroactively corrected a • Use of the payer's property. mathematical error under your divorce decree to express Example. Under your written separation agreement, the original intent to spread the payments over more than your spouse lives rent-free in a home you own and you 10 years. This change also is effective retroactively for must pay the mortgage, real estate taxes, insurance, re- federal tax purposes. pairs, and utilities for the home. Because you own the Example 2. Your original divorce decree didn't fix any home and the debts are yours, your payments for the part of the payment as child support. To reflect the true in- mortgage, real estate taxes, insurance, and repairs aren’t tention of the court, a court order retroactively corrected alimony. Neither is the value of your spouse's use of the the error by designating a part of the payment as child home. support. The amended order is effective retroactively for If they qualify, you may be able to deduct the payments federal tax purposes. for utilities as alimony. Your spouse must report them as income. If you itemize deductions, you can deduct the real Deducting alimony paid. Generally, you can deduct ali- estate taxes and, if the home is a qualified home, you can mony you paid, whether or not you itemized deductions also include the interest on the mortgage in figuring your on your return. deductible interest. However, if your spouse owned the home, see Example 2 under Payments to a third party,
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67 Table 4. Expenses for a Jointly Owned Home Use the table below to find how much of your payment is alimony and how much you can claim as an itemized deduction.
THEN you can deduct and your spouse (or former IF you must pay spouse) must include as AND you can claim as an all of the ... AND your home is ... alimony ... itemized deduction ... mortgage jointly owned half of the total payments half of the interest as interest payments expense (if the home is a qualified (principal and home).1 interest) real estate taxes held as tenants in half of the total payments half of the real estate taxes2 and and home common none of the home insurance. insurance held as tenants by none of the payments all of the real estate taxes and the entirety or in joint none of the home insurance. tenancy
1 Your spouse (or former spouse) can deduct the other half of the interest if the home is a qualified home. 2 Your spouse (or former spouse) can deduct the other half of the real estate taxes. later. If you owned the home jointly with your spouse, see alimony on your return. Your former spouse must report Table 4. For more information, see Pub. 936, Home Mort- them as alimony received and can include them in figuring gage Interest Deduction. deductible medical expenses.
Child support. To determine whether a payment is Example 2. Under your separation agreement, you child support, see the discussion under Certain Rules for must pay the real estate taxes, mortgage payments, and Instruments Executed After 1984, later. If your divorce or insurance premiums on a home owned by your spouse. If separation agreement was executed before 1985, see the they otherwise qualify, you can deduct the payments as 2004 revision of Pub. 504, available at IRS.gov/ alimony on your return, and your spouse must report them FormsPubs. as alimony received. Your spouse may be able to deduct Underpayment. If both alimony and child support pay- the real estate taxes and home mortgage interest, subject ments are called for by your divorce or separation instru- to the limitations on those deductions. See the Instruc- ment, and you pay less than the total required, the pay- tions for Schedule A (Form 1040). However, if you owned ments apply first to child support and then to alimony. the home, see the example under Payments not alimony, earlier. If you owned the home jointly with your spouse, Example. Your divorce decree calls for you to pay see Table 4. your former spouse $200 a month ($2,400 ($200 x 12) a year) as child support and $150 a month ($1,800 ($150 x Life insurance premiums. Alimony includes premiums 12) a year) as alimony. If you pay the full amount of you must pay under your divorce or separation instrument $4,200 ($2,400 + $1,800) during the year, you can deduct for insurance on your life to the extent your spouse owns $1,800 as alimony and your former spouse must report the policy. $1,800 as alimony received. If you pay only $3,600 during Payments for jointly owned home. If your divorce or the year, $2,400 is child support. You can deduct only separation instrument states that you must pay expenses $1,200 ($3,600 – $2,400) as alimony and your former for a home owned by you and your spouse or former spouse must report $1,200 as alimony received. spouse, some of your payments may be alimony. See Ta- Payments to a third party. Cash payments, checks, or ble 4. money orders to a third party on behalf of your spouse un- However, if your spouse owned the home, see Exam- der the terms of your divorce or separation instrument can ple 2 under Payments to a third party, earlier. If you owned be alimony, if they otherwise qualify. These include pay- the home, see the example under Payments not alimony, ments for your spouse's medical expenses, housing costs earlier. (rent, utilities, etc.), taxes, tuition, etc. The payments are treated as received by your spouse and then paid to the Certain Rules for Instruments third party. Executed After 1984
Example 1. Under your divorce decree, you must pay The following rules for alimony apply to payments under your former spouse's medical and dental expenses. If the divorce or separation instruments executed after 1984. payments otherwise qualify, you can deduct them as
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68 Alimony Requirements Your spouse can exclude the payments from income only if he or she attaches a copy of the instrument desig- A payment to or for a spouse under a divorce or separa- nating them as not alimony to his or her return. The copy tion instrument is alimony if the spouses don’t file a joint must be attached each year the designation applies. return with each other and all of the following require- ments are met. Spouses can’t be members of the same household. Payments to your spouse while you are members of the • The payment is in cash. same household aren't alimony if you are legally separa- • The instrument doesn’t designate the payment as not ted under a decree of divorce or separate maintenance. A alimony. home you formerly shared is considered one household, • The spouses aren’t members of the same household even if you physically separate yourselves in the home. at the time the payments are made. This requirement You aren’t treated as members of the same household applies only if the spouses are legally separated un- if one of you is preparing to leave the household and does der a decree of divorce or separate maintenance. leave no later than 1 month after the date of the payment. • There is no liability to make any payment (in cash or Exception. If you aren’t legally separated under a de- property) after the death of the recipient spouse. cree of divorce or separate maintenance, a payment un- der a written separation agreement, support decree, or • The payment isn’t treated as child support. other court order may qualify as alimony even if you are Each of these requirements is discussed next. members of the same household when the payment is made. Cash payment requirement. Only cash payments, in- cluding checks and money orders, qualify as alimony. The Liability for payments after death of recipient following don’t qualify as alimony. spouse. If any part of payments you make must continue to be made for any period after your spouse's death, that Transfers of services or property (including a debt in- • part of your payments isn’t alimony whether made before strument of a third party or an annuity contract). or after the death. If all of the payments would continue, • Execution of a debt instrument by the payer. then none of the payments made before or after the death • The use of the payer's property. are alimony. The divorce or separation instrument doesn’t have to Payments to a third party. Cash payments to a third expressly state that the payments cease upon the death party under the terms of your divorce or separation instru- of your spouse if, for example, the liability for continued ment can qualify as cash payments to your spouse. See payments would end under state law. Payments to a third party under General Rules, earlier. Also, cash payments made to a third party at the written Example. You must pay your former spouse $10,000 request of your spouse may qualify as alimony if all the fol- in cash each year for 10 years. Your divorce decree states lowing requirements are met. that the payments will end upon your former spouse's death. You must also pay your former spouse or your for- • The payments are in lieu of payments of alimony di- mer spouse's estate $20,000 in cash each year for 10 rectly to your spouse. years. The death of your spouse wouldn’t end these pay- • The written request states that both spouses intend ments under state law. the payments to be treated as alimony. The $10,000 annual payments may qualify as alimony. The $20,000 annual payments that don’t end upon your • You receive the written request from your spouse be- former spouse's death aren’t alimony. fore you file your return for the year you made the pay- ments. Substitute payments. If you must make any pay- ments in cash or property after your spouse's death as a Payments designated as not alimony. You and your substitute for continuing otherwise qualifying payments spouse can designate that otherwise qualifying payments before the death, the otherwise qualifying payments aren’t aren't alimony. You do this by including a provision in your alimony. To the extent that your payments begin, acceler- divorce or separation instrument that states the payments ate, or increase because of the death of your spouse, oth- aren't deductible as alimony by you and are excludable erwise qualifying payments you made may be treated as from your spouse's income. For this purpose, any instru- payments that weren’t alimony. Whether or not such pay- ment (written statement) signed by both of you that makes ments will be treated as not alimony depends on all the this designation and that refers to a previous written sepa- facts and circumstances. ration agreement is treated as a written separation agree- ment (and therefore a divorce or separation instrument). If Example 1. Under your divorce decree, you must pay you are subject to temporary support orders, the designa- your former spouse $30,000 annually. The payments will tion must be made in the original or a later temporary sup- stop at the end of 6 years or upon your former spouse's port order. death, if earlier. Your former spouse has custody of your minor children. The decree provides that if any child is still a minor at your spouse's death, you must pay $10,000 annually to a trust
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69 until the youngest child reaches the age of majority. The happening of a contingency relating to your child only in trust income and corpus (principal) are to be used for your the following situations. children's benefit. 1. The payments are to be reduced not more than 6 These facts indicate that the payments to be made af- months before or after the date the child will reach 18, ter your former spouse's death are a substitute for 21, or local age of majority. $10,000 of the $30,000 annual payments. Of each of the $30,000 annual payments, $10,000 isn't alimony. 2. The payments are to be reduced on two or more oc- casions that occur not more than 1 year before or af- Example 2. Under your divorce decree, you must pay ter a different one of your children reaches a certain your former spouse $30,000 annually. The payments will age from 18 to 24. This certain age must be the same stop at the end of 15 years or upon your former spouse's for each child, but need not be a whole number of death, if earlier. The decree provides that if your former years. spouse dies before the end of the 15-year period, you must pay the estate the difference between $450,000 In all other situations, reductions in payments aren't trea- ($30,000 × 15) and the total amount paid up to that time. ted as clearly associated with the happening of a contin- For example, if your spouse dies at the end of the 10th gency relating to your child. year, you must pay the estate $150,000 ($450,000 − Either you or the IRS can overcome the presumption in $300,000). the two situations above. This is done by showing that the These facts indicate that the lump-sum payment to be time at which the payments are to be reduced was deter- made after your former spouse's death is a substitute for mined independently of any contingencies relating to your the full amount of the $30,000 annual payments. None of children. For example, if you can show that the period of the annual payments are alimony. The result would be the alimony payments is customary in the local jurisdiction, same if the payment required at death were to be discoun- such as a period equal to one-half of the duration of the ted by an appropriate interest factor to account for the pre- marriage, you can overcome the presumption and may be payment. able to treat the amount as alimony. Child support. A payment that is specifically designated Recapture of Alimony as child support or treated as specifically designated as child support under your divorce or separation instrument If your alimony payments decrease or end during the first isn’t alimony. The amount of child support may vary over 3 calendar years, you may be subject to the recapture time. Child support payments aren’t deductible by the rule. If you are subject to this rule, you have to include in payer and aren’t taxable to the payee. income (in the third year) part of the alimony payments you previously deducted. Your spouse can deduct (in the A pay- Specifically designated as child support. third year) part of the alimony payments he or she previ- ment will be treated as specifically designated as child ously included in income. support to the extent that the payment is reduced either: • On the happening of a contingency relating to your The 3-year period starts with the first calendar year you child, or make a payment qualifying as alimony under a decree of • At a time that can be clearly associated with the con- divorce or separate maintenance or a written separation tingency. agreement. Don’t include any time in which payments were being made under temporary support orders. The A payment may be treated as specifically designated as second and third years are the next 2 calendar years, child support even if other separate payments are specifi- whether or not payments are made during those years. cally designated as child support. Contingency relating to your child. A contingency The reasons for a reduction or end of alimony pay- relates to your child if it depends on any event relating to ments that can require a recapture include: that child. It doesn’t matter whether the event is certain or • A change in your divorce or separation instrument, likely to occur. Events relating to your child include the child's: • A failure to make timely payments, • Becoming employed, • A reduction in your ability to provide support, or • Dying, • A reduction in your spouse's support needs. • Leaving the household, When to apply the recapture rule. You are subject to • Leaving school, the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the • Marrying, or second year or the alimony you pay in the second and • Reaching a specified age or income level. third years decreases significantly from the alimony you pay in the first year. Clearly associated with a contingency. Payments When you figure a decrease in alimony, don’t include that would otherwise qualify as alimony are presumed to the following amounts. be reduced at a time clearly associated with the • Payments made under a temporary support order.
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Worksheet 1. Recapture of Alimony Keep for Your Records Note. Don't enter less than -0- on any line.
1. Alimony paid in 2nd year ...... 1.
2. Alimony paid in 3rd year ...... 2.
3. Floor ...... 3. $15,000
4. Add lines 2 and 3 ...... 4.
5. Subtract line 4 from line 1. If zero or less, enter -0- ...... 5.
6. Alimony paid in 1st year ...... 6. 7. Adjusted alimony paid in 2nd year (line 1 minus line 5) ...... 7.
8. Alimony paid in 3rd year ...... 8.
9. Add lines 7 and 8 ...... 9.
10. Divide line 9 by 2.0 ...... 10.
11. Floor ...... 11. $15,000
12. Add lines 10 and 11 ...... 12.
13. Subtract line 12 from line 6 ...... 13.
14. Recaptured alimony. Add lines 5 and 13 ...... *14.
. * If you deducted alimony paid, report this amount as income on Schedule 1 (Form 1040), line 2a. If you reported alimony received, deduct this amount on Schedule 1 (Form 1040), line 18a.
• Payments required over a period of at least 3 calendar Instruments Executed Before 1985 years that vary because they are a fixed part of your income from a business or property, or from compen- Information on pre-1985 instruments was included in this sation for employment or self-employment. publication through 2004. If you need the 2004 revision, • Payments that decrease because of the death of ei- please visit IRS.gov/FormsPubs. ther spouse or the remarriage of the spouse receiving the payments before the end of the third year. Certain Rules for Instruments How to figure and report the recapture. Both you and Executed or Modified After 2018 your spouse can use Worksheet 1 to figure recaptured ali- mony. Amounts paid as alimony or separate maintenance pay- ments under a divorce or separation instrument executed Including the recapture in income. If you must in- after 2018 won’t be deductible by the payer. Such clude a recapture amount in income, show it on Schedule amounts also won’t be includible in the income of the re- 1 (Form 1040), line 2a (“Alimony received”). Cross out “re- cipient. The same is true of alimony paid under a divorce ceived” and enter “recapture.” On the dotted line next to or separation instrument executed before 2019 and modi- the amount, enter your spouse's last name and SSN or fied after 2018, if the modification expressly states that the ITIN. alimony isn’t deductible to the payer or includible in the in- Deducting the recapture. If you can deduct a recap- come of the recipient. The examples below illustrate the ture amount, show it on Schedule 1 (Form 1040), line 18a tax treatment of alimony payments under the post-2018 (“Alimony paid”). Cross out “paid” and enter “recapture.” In alimony rules. In each of the examples, assume the pay- the space provided, enter your spouse's SSN or ITIN. ments qualify as alimony under the Internal Revenue Code of 1986. Example. You pay your former spouse $50,000 ali- mony the first year, $39,000 the second year, and Example 1. On December 2, 2013, a court executed a $28,000 the third year. In the third year, you report $1,500 divorce decree providing for monthly alimony payments as income on Schedule 1 (Form 1040), line 2a, and your beginning January 1, 2014, for a period of 8 years. On former spouse reports $1,500 as a deduction on Schedule May 15, 2020, the court modified the divorce decree to in- 1 (Form 1040), line 18a. (See the worksheet that was crease the amount of monthly alimony payments. The first completed for this example.) increased alimony payment was due on June 1, 2020. The modification didn't expressly provide that the post-
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71 Worksheet 1. Recapture of Alimony—Illustrated Note. Don't enter less than -0- on any line.
1. Alimony paid in 2nd year ...... 1. $39,000
2. Alimony paid in 3rd year ...... 2. 28,000
3. Floor ...... 3. $15,000
4. Add lines 2 and 3 ...... 4. 43,000
5. Subtract line 4 from line 1. If zero or less, enter -0- ...... 5. -0-
6. Alimony paid in 1st year ...... 6. 50,000 7. Adjusted alimony paid in 2nd year (line 1 minus line 5) ...... 7. 39,000
8. Alimony paid in 3rd year ...... 8. 28,000
9. Add lines 7 and 8 ...... 9. 67,000
10. Divide line 9 by 2.0 ...... 10. 33,500
11. Floor ...... 11. $15,000
12. Add lines 10 and 11 ...... 12. 48,500
13. Subtract line 12 from line 6 ...... 13. 1,500
14. Recaptured alimony. Add lines 5 and 13 ...... *14. 1,500
. * If you deducted alimony paid, report this amount as income on Schedule 1 (Form 1040), line 2a. If you reported alimony received, deduct this amount on Schedule 1 (Form 1040), line 18a.
2018 alimony rules apply to alimony payments made after neither includible in the recipient’s income nor deductible the date of the modification. Therefore, all alimony pay- from the payer’s income. ments made in 2020 are includible in the recipient’s in- come and deductible from the payer’s income. Example 4. On October 1, 2018, a couple executed a written separation agreement subject to the laws of State Example 2. Assume the same facts as in Example 1 X. The written separation agreement requires a $1,000 above except the modification expressly provided that the monthly alimony payment on the last business day of a post-2018 alimony rules apply. The alimony payments month for a period of 3 years. Under the laws of State X, made in January 2020 through May 2020 are includible in at the time of divorce, a written separation agreement may the recipient’s income and deductible from the payer’s in- survive as an independent contract. In the process of ob- come. The alimony payments made in June 2020 through taining their divorce, the couple decided their separation December 2020 are neither includible in the recipient’s in- agreement will remain an independent contract and won't come nor deductible from the payer’s income. be incorporated or merged into their divorce decree. The court, after acknowledging the separation agreement as Example 3. On December 2, 2013, a couple executed fair and equitable, executed a divorce decree on April 1, a written separation agreement providing for monthly ali- 2020, dissolving the couple’s marriage. The divorce de- mony payments on the first day of each month, beginning cree did not mention alimony. All alimony payments made January 1, 2014, for a period of 8 years. The written sepa- in 2020 are includible in the recipient’s income and deduc- ration agreement set forth that it expires upon the execu- tible from the payer’s income because the alimony pay- tion of a divorce decree dissolving the couple’s marriage. ments were made under the written separation agreement On May 27, 2020, a court executed the divorce decree that was executed on or before December 31, 2018. awarding alimony under the same terms as described in the couple’s separation agreement. The alimony pay- ments made in January 2020 through May 2020 under the written separation agreement are includible in the recipi- ent’s income and deductible from the payer’s income. The court executed the divorce decree after December 31, 2018; therefore, alimony payments made in June 2020 through December 2020 under the divorce decree are
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Spousal IRA. If you get a final decree of divorce or sepa- rate maintenance by the end of your tax year, you can’t Qualified Domestic deduct contributions you make to your former spouse's Relations Order traditional IRA. You can deduct only contributions to your own traditional IRA.
A qualified domestic relations order (QDRO) is a judg- IRA transferred as a result of divorce. The transfer of ment, decree, or court order (including an approved prop- all or part of your interest in a traditional IRA to your erty settlement agreement) issued under a state's domes- spouse or former spouse, under a decree of divorce or tic relations law that: separate maintenance or a written instrument incident to • Recognizes someone other than a participant as hav- the decree, isn’t considered a taxable transfer. Starting ing a right to receive benefits from a qualified retire- from the date of the transfer, the traditional IRA interest ment plan (such as most pension and profit-sharing transferred is treated as your spouse's or former spouse's plans) or a tax-sheltered annuity; traditional IRA. • Relates to payment of child support, alimony, or mari- IRA contribution and deduction limits. All taxable ali- tal property rights to a spouse, former spouse, child, mony you receive under a decree of divorce or separate or other dependent of the participant; and maintenance is treated as compensation for the contribu- • Specifies certain information, including the amount or tion and deduction limits for traditional IRAs. part of the participant's benefits to be paid to the par- ticipant's spouse, former spouse, child, or other de- For more information about IRAs, including Roth IRAs, pendent. see Pub. 590-A and Pub. 590-B.
Benefits paid to a child or other dependent. Benefits paid under a QDRO to the plan participant's child or other Property Settlements dependent are treated as paid to the participant. For infor- mation about the tax treatment of benefits from retirement Generally, there is no recognized gain or loss on the plans, see Pub. 575, Pension and Annuity Income. transfer of property between spouses, or between former spouses if the transfer is because of a divorce. You may, Benefits Benefits paid to a spouse or former spouse. however, have to report the transaction on a gift tax re- paid under a QDRO to the plan participant's spouse or for- turn. See Gift Tax on Property Settlements, later. If you mer spouse must generally be included in the spouse's or sell property that you own jointly to split the proceeds as former spouse's income. If the participant contributed to part of your property settlement, see Sale of the retirement plan, a prorated share of the participant's Jointly-Owned Property, later. cost (investment in the contract) is used to figure the taxa- ble amount. The spouse or former spouse can use the special rules Transfer Between Spouses for lump-sum distributions if the benefits would have been treated as a lump-sum distribution had the participant re- Generally, no gain or loss is recognized on a transfer of ceived them. For this purpose, consider only the balance property from you to (or in trust for the benefit of): to the spouse's or former spouse's credit in determining • Your spouse, or whether the distribution is a total distribution. See Lump-Sum Distributions in Pub. 575 for information about • Your former spouse, but only if the transfer is incident the special rules. to your divorce. This rule applies even if the transfer was in exchange for Rollovers. If you receive an eligible rollover distribu- cash, the release of marital rights, the assumption of liabil- tion under a QDRO as the plan participant's spouse or for- ities, or other consideration. mer spouse, you may be able to roll it over tax free into a traditional individual retirement arrangement (IRA) or an- Exceptions to nonrecognition rule. This rule doesn’t other qualified retirement plan. apply in the following situations. For more information on the tax treatment of eligible rollover distributions, see Pub. 575. • Your spouse or former spouse is a nonresident alien. • Certain transfers in trust, discussed later. • Certain stock redemptions under a divorce or separa- Individual Retirement tion instrument or a valid written agreement that are taxable under applicable tax law, as discussed in Reg- Arrangements ulations section 1.1041-2.
The following discussions explain some of the effects of Property subject to nonrecognition rule. The term divorce or separation on traditional individual retirement “property” includes all property whether real or personal, arrangements (IRAs). Traditional IRAs are IRAs other than tangible or intangible, or separate or community. It in- Roth or SIMPLE IRAs. cludes property acquired after the end of your marriage
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73 and transferred to your former spouse. It doesn’t include You don’t recognize gain or loss on the first transfer. In- services. stead, your spouse or former spouse may have to recog- nize gain or loss on the second transfer. Health savings account (HSA). If you transfer your in- For this treatment to apply, the transfer from you to the terest in an HSA to your spouse or former spouse under a third party must be one of the following. divorce or separation instrument, it isn’t considered a tax- able transfer. After the transfer, the interest is treated as • Required by your divorce or separation instrument. your spouse's HSA. • Requested in writing by your spouse or former spouse. Archer medical savings account (MSA). If you transfer your interest in an Archer MSA to your spouse or former • Consented to in writing by your spouse or former spouse under a divorce or separation instrument, it isn’t spouse. The consent must state that both you and considered a taxable transfer. After the transfer, the inter- your spouse or former spouse intend the transfer to be est is treated as your spouse's Archer MSA. treated as a transfer from you to your spouse or for- mer spouse subject to the rules of Internal Revenue Individual retirement arrangement (IRA). The treat- Code section 1041. You must receive the consent be- ment of the transfer of an interest in an IRA as a result of fore filing your tax return for the year you transfer the divorce is similar to that just described for the transfer of property. an interest in an HSA and an Archer MSA. See IRA trans- This treatment doesn’t apply to transfers to which ferred as a result of divorce, earlier, under Individual Re- Regulations section 1.1041-2 (certain stock re- tirement Arrangements. CAUTION! demptions) applies. Incident to divorce. A property transfer is incident to your divorce if the transfer: Transfers in trust. If you make a transfer of property in trust for the benefit of your spouse (or former spouse, if in- • Occurs within 1 year after the date your marriage cident to your divorce), you generally don’t recognize any ends, or gain or loss. • Is related to the end of your marriage. However, you must recognize gain or loss if, incident to A divorce, for this purpose, includes the end of your mar- your divorce, you transfer an installment obligation in trust riage by annulment or due to violations of state laws. for the benefit of your former spouse. For information on the disposition of an installment obligation, see Pub. 537, Related to end of marriage. A property transfer is re- Installment Sales. lated to the end of your marriage if both of the following You must also recognize as gain on the transfer of conditions apply. property in trust the amount by which the liabilities as- • The transfer is made under your original or modified sumed by the trust, plus the liabilities to which the prop- divorce or separation instrument. erty is subject, exceed the total of your adjusted basis in the transferred property. • The transfer occurs within 6 years after the date your marriage ends. Example. You own property with a fair market value of Unless these conditions are met, the transfer is pre- $12,000 and an adjusted basis of $1,000. You transfer the sumed not to be related to the end of your marriage. How- property in trust for the benefit of your spouse. The trust ever, this presumption won't apply if you can show that the didn’t assume any liabilities. The property is subject to a transfer was made to carry out the division of property $5,000 liability. Your recognized gain is $4,000 ($5,000 − owned by you and your spouse at the time your marriage $1,000). ended. For example, the presumption won't apply if you Reporting income from property. You should report in- can show that the transfer was made more than 6 years come from property transferred to your spouse or former after the end of your marriage because of business or le- spouse as shown in Table 5. gal factors that prevented earlier transfer of the property For information on the treatment of interest on transfer- and the transfer was made promptly after those factors red U.S. savings bonds, see chapter 1 of Pub. 550, In- were taken care of. vestment Income and Expenses. Transfers to third parties. If you transfer property to a When you transfer property to your spouse (or for- third party on behalf of your spouse (or former spouse, if mer spouse, if incident to your divorce), you must incident to your divorce), the transfer is treated as two RECORDS give your spouse sufficient records to determine transfers. the adjusted basis and holding period of the property on • A transfer of the property from you to your spouse or the date of the transfer. If you transfer investment credit former spouse. property with recapture potential, you must also provide sufficient records to determine the amount and period of • An immediate transfer of the property from your the recapture. spouse or former spouse to the third party. Tax treatment of property received. Property you re- ceive from your spouse (or former spouse, if the transfer is
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74 Table 5. Property Transferred Pursuant to Divorce The tax treatment of items of property transferred from you to your spouse or former spouse pursuant to your divorce is shown below.
AND your spouse or FOR more information, IF you transfer ... THEN you ... former spouse ... see ... income-producing include on your tax return reports any income or Pub. 550, Investment property (such as an any profit or loss, rental loss generated or Income and Expenses. interest in a business, income or loss, dividends, derived after the (See Ownership rental property, stocks, or interest generated or property is transferred. transferred under U.S. or bonds) derived from the property Savings Bonds in during the year until the chapter 1.) property is transferred interest in a passive can’t deduct your increases the adjusted Pub. 925, Passive Activity activity with unused accumulated unused basis of the transferred and At-Risk Rules. passive activity losses passive activity losses interest by the amount of allocable to the interest the unused losses. investment credit don’t have to recapture may have to recapture Form 4255, Recapture of property with recapture any part of the credit part of the credit if he or Investment Credit. potential she disposes of the property or changes its use before the end of the recapture period. interests in nonstatutory don’t include any amount includes an amount in stock options and in gross income upon the gross income when he or nonqualified deferred transfer she exercises the stock compensation options or when the deferred compensation is paid or made available to him or her. incident to your divorce) is treated as acquired by gift for Property received before July 19, 1984. Your basis income tax purposes. Its value isn’t taxable to you. in property received in settlement of marital support rights before July 19, 1984, or under an instrument in effect be- Basis of property received. Your basis in property re- fore that date (other than property for which you and your ceived from your spouse (or former spouse, if incident to spouse (or former spouse) made a “section 1041 elec- your divorce) is the same as your spouse's adjusted ba- tion”) is its fair market value when you received it. sis. This applies for determining either gain or loss when you later dispose of the property. It applies whether the Example. Larry and Gina owned their home jointly be- property's adjusted basis is less than, equal to, or greater fore their divorce in 1983. That year, Gina received Larry's than either its value at the time of the transfer or any con- interest in the home in settlement of her marital support sideration you paid. It also applies even if the property's li- rights. Gina's basis in the interest received from Larry is abilities are more than its adjusted basis. the part of the home's fair market value proportionate to This rule generally applies to all property received after that interest. Her total basis in the home is that part of the July 18, 1984, under a divorce or separation instrument in fair market value plus her adjusted basis in her own inter- effect after that date. It also applies to all other property est. received after 1983 for which you and your spouse (or for- Property transferred in trust. If the transferor recog- mer spouse) made a “section 1041 election” to apply this nizes gain on property transferred in trust, as described rule. For information about how to make that election, see earlier under Transfers in trust, the trust's basis in the Temporary Regulations section 1.1041-1T(g). property is increased by the recognized gain. Example. Karen and Don owned their home jointly. Example. Your spouse transfers property in trust, rec- Karen transferred her interest in the home to Don as part ognizing a $4,000 gain. Your spouse's adjusted basis in of their property settlement when they divorced last year. the property was $1,000. The trust's basis in the property Don's basis in the interest received from Karen is her ad- is $5,000 ($1,000 + $4,000). justed basis in the home. His total basis in the home is their joint adjusted basis.
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75 Gift Tax on Property Settlements the date of the agreement. This exception applies whether or not the agreement is part of or approved by the divorce Generally, a transfer to a spouse who is a citizen of the decree. United States isn’t subject to federal gift tax, because Annual exclusion. The first $15,000 of gifts of present there is an unlimited deduction for transfers to a U.S. citi- interests to each person during 2020 isn’t subject to gift zen spouse. However, a transfer to a former spouse isn’t tax. This includes transfers to a former spouse or transfers generally eligible for a martial deduction, and may be sub- to a current spouse that don’t qualify for the marital deduc- ject to federal gift tax unless the transfer qualifies for one tion. The annual exclusion is $157,000 for transfers to a or more of the exceptions explained in this discussion. If spouse who isn’t a U.S. citizen provided the gift would your transfer of property doesn’t qualify for an exception, otherwise qualify for the gift tax marital deduction if the do- or qualifies only in part, you must report it on a gift tax re- nee were a U.S. citizen. turn. See Gift Tax Return, later. Present interest. A gift is considered a present inter- For more information about the federal gift tax, see Es- est if the donee has unrestricted rights to the immediate tate and Gift Taxes in Pub. 559, Survivors, Executors, and use, possession, and enjoyment of the property or income Administrators, and Form 709 and its instructions. from the property. Exceptions Direct payments of tuition or medical care. Direct payments of tuition to an educational organization or to Your transfer of property to your spouse or former spouse any person or organization that provides medical care (in- isn’t subject to gift tax if it meets any of the following ex- cluding direct payments to a health insurer) aren’t subject ceptions. to federal gift tax. Therefore, such payments made for the • It is made in settlement of marital support rights. benefit of a spouse or former spouse won’t be subject to federal gift tax. • It qualifies for the marital deduction. • It is made under a divorce decree. Gift Tax Return • It is made under a written agreement, and you are di- Report a transfer of property subject to gift tax on Form vorced within a specified period. 709. Generally, Form 709 is due April 15 following the • It qualifies for the annual exclusion. year of the transfer. • It qualifies for the unlimited exclusion for direct pay- Transfer under written agreement. If a property trans- ments of tuition or medical care. fer would be subject to gift tax except that it is made under a written agreement, and you don’t receive a final decree Settlement of marital support rights. A transfer in set- of divorce by the due date for filing the gift tax return, you tlement of marital support rights isn’t subject to gift tax to must report the transfer on Form 709 and attach a copy of the extent the value of the property transferred isn’t more your written agreement. The transfer will be treated as not than the value of those rights. This exception doesn’t ap- subject to the gift tax until the final decree of divorce is ply to a transfer in settlement of dower, curtesy, or other granted, but no longer than 2 years after the effective date marital property rights. of the written agreement. Marital deduction. A transfer of property to your spouse Within 60 days after you receive a final decree of di- before receiving a final decree of divorce or separate vorce, send a certified copy of the decree to the IRS office maintenance isn't subject to gift tax. However, this excep- where you filed Form 709. tion doesn’t apply to: • Transfers of certain terminable interests (for example, Sale of Jointly Owned Property certain interests in trust), or If you sell property that you and your spouse own jointly, • Transfers to your spouse if your spouse isn’t a U.S. you must report your share of the recognized gain or loss citizen. on your income tax return for the year of the sale. Your share of the gain or loss is determined by your state law Transfer under divorce decree. A transfer of property governing ownership of property. For information on re- under the decree of a divorce court having the power to porting gain or loss, see Pub. 544. prescribe a property settlement isn’t subject to gift tax. This exception also applies to a property settlement Sale of home. If you sold your main home, you may be agreed on before the divorce if it was made part of or ap- able to exclude up to $250,000 (up to $500,000 if you and proved by the decree. your spouse file a joint return) of gain on the sale. For more information, including special rules that apply to sep- Transfer under written agreement. A transfer of prop- arated and divorced individuals selling a main home, see erty under a written agreement in settlement of marital Pub. 523, Selling Your Home. rights or to provide a reasonable child support allowance isn’t subject to gift tax if you are divorced within the 3-year period beginning 1 year before and ending 2 years after
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and remarried in 2020, enter your present spouse's SSN in that space and enter your former spouse's SSN, fol- Costs of Getting a Divorce lowed by “DIV” to the left of Form 1040, line 26. You can’t deduct legal fees and court costs for getting a divorce. In addition, you can’t deduct legal fees paid for tax advice in connection with a divorce and legal fees to Community Property get alimony or fees you pay to appraisers, actuaries, and accountants for services in determining your correct tax or If you are married and your domicile (permanent legal in helping to get alimony. home) is in a community property state, special rules de- termine your income. Some of these rules are explained in Other Nondeductible expenses. You can’t deduct the the following discussions. For more information, see Pub. costs of personal advice, counseling, or legal action in a 555. divorce. These costs aren’t deductible, even if they are paid, in part, to arrive at a financial settlement or to protect Community property states. Community property income-producing property. states include: You also can’t deduct legal fees you pay for a property • Arizona, settlement. However, you can add it to the basis of the property you receive. For example, you can add the cost • California, of preparing and filing a deed to put title to your house in • Idaho, your name alone to the basis of the house. Louisiana, Finally, you can’t deduct fees you pay for your spouse • or former spouse, unless your payments qualify as ali- • Nevada, mony. (See Payments to a third party under Alimony, ear- • New Mexico, lier.) If you have no legal responsibility arising from the di- vorce settlement or decree to pay your spouse's legal • Texas, fees, your payments are gifts and may be subject to the • Washington, and gift tax. • Wisconsin. Tax Withholding Community Income and Estimated Tax If your domicile is in a community property state during any part of your tax year, you may have community in- When you become divorced or separated, you will ususal- come. Your state law determines whether your income is lyhave to file a new Form W-4 with your employer to claim separate or community income. If you and your spouse your proper withholding. If you receive alimony, you may file separate returns, you must report half of any income have to make estimated tax payments. described by state law as community income and all of your separate income, and your spouse must report the If you don’t pay enough tax either through with- other half of any community income plus all of his or her ! holding or by making estimated tax payments, separate income. Each of you can claim credit for half the CAUTION you will have an underpayment of estimated tax income tax withheld from community income. and you may have to pay a penalty. If you don’t pay enough tax by the due date of each payment, you may Community Property Laws Disregarded have to pay a penalty even if you are due a refund when you file your tax return. The following discussions are situations where special rules apply to community property. For more information, see Pub. 505, Tax Withholding and Estimated Tax. Certain community income not treated as community income by one spouse. Community property laws may Joint estimated tax payments. If you and your spouse not apply to an item of community income that you re- made joint estimated tax payments for 2020 but file sepa- ceived but didn’t treat as community income. You will be rate returns, either of you can claim all of your payments, responsible for reporting all of it if: or you can divide them in any way on which you both agree. If you can’t agree, the estimated tax you can claim • You treat the item as if only you are entitled to the in- equals the total estimated tax paid times the tax shown on come, and your separate return for 2020, divided by the total of the • You don’t notify your spouse of the nature and amount tax shown on your 2020 return and your spouse's 2020 re- of the income by the due date for filing the return (in- turn. You may want to attach an explanation of how you cluding extensions). and your spouse divided the payments. If you claim any of the payments on your tax return, en- Relief from liability for tax attributable to an item of ter your spouse's or former spouse's SSN in the space community income. You aren’t responsible for the tax provided on Form 1040 or 1040-SR. If you were divorced
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77 on an item of community income if all five of the following (in full or in part) to you if any of the following excep- conditions exist. tions apply. 1. You didn’t file a joint return for the tax year. a. The item is attributable or partially attributable to you solely due to the operation of community 2. You didn’t include an item of community income in property law. If you meet this exception, that item gross income on your separate return. will be considered attributable to your spouse (or 3. The item of community income you didn’t include is former spouse) for purposes of equitable relief. one of the following. b. If the item is titled in your name, the item is pre- a. Wages, salaries, and other compensation your sumed to be attributable to you. However, you can spouse (or former spouse) received for services rebut this presumption based on the facts and cir- he or she performed as an employee. cumstances. b. Income your spouse (or former spouse) derived c. You didn’t know, and had no reason to know, that from a trade or business he or she operated as a funds intended for the payment of tax were misap- sole proprietor. propriated by your spouse (or former spouse) for his or her benefit. If you meet this exception, the c. Your spouse's (or former spouse's) distributive IRS will consider granting equitable relief although share of partnership income. the unpaid tax may be attributable in part or in full d. Income from your spouse's (or former spouse's) to your item, and only to the extent the funds in- separate property (other than income described in tended for payment were taken by your spouse (or (a), (b), or (c)). Use the appropriate community former spouse). property law to determine what is separate prop- d. You establish that you were the victim of spousal erty. abuse or domestic violence before the return was e. Any other income that belongs to your spouse (or filed, and that, as a result of the prior abuse, you former spouse) under community property law. didn’t challenge the treatment of any items on the return for fear of your spouse’s (or former spou- 4. You establish that you didn’t know of, and had no rea- se’s) retaliation. If you meet this exception, relief son to know of, that community income. will be considered even though the understated 5. Under all facts and circumstances, it wouldn't be fair tax or unpaid tax may be attributable in part or in to include the item of community income in your gross full to your item. income. e. The item giving rise to the understated tax or defi- Equitable relief from liability for tax attributable to an ciency is attributable to you, but you establish that item of community income. To be considered for equi- your spouse’s (or former spouse’s) fraud is the table relief from liability for tax attributable to an item of reason for the erroneous item. community income, you must meet all of the following Requesting relief. For information on how and when conditions. to request relief from liabilities arising from community 1. You timely filed your claim for relief. property laws, see Community Property Laws in Pub. 971. 2. You and your spouse (or former spouse) didn’t trans- Spousal agreements. In some states, spouses may en- fer assets to one another as a part of a fraudulent ter into an agreement that affects the status of property or scheme. A fraudulent scheme includes a scheme to income as community or separate property. Check your defraud the IRS or another third party, such as a cred- state law to determine how it affects you. itor, former spouse, or business partner. Spouses living apart all year. If you are married at any 3. Your spouse (or former spouse) didn’t transfer prop- time during the calendar year, special rules apply for re- erty to you for the main purpose of avoiding tax or the porting certain community income. You must meet all the payment of tax. following conditions for these special rules to apply. 4. You didn’t knowingly participate in the filing of a frau- 1. You and your spouse lived apart all year. dulent joint return. 2. You and your spouse didn’t file a joint return for a tax 5. The income tax liability from which you seek relief is year beginning or ending in the calendar year. attributable (either in full or in part) to an item of your spouse (or former spouse) or an unpaid tax resulting 3. You and/or your spouse had earned income for the from your spouse’s (or former spouse’s) income. If the calendar year that is community income. liability is partially attributable to you, then relief can 4. You and your spouse haven’t transferred, directly or only be considered for the part of the liability attributa- indirectly, any of the earned income in (3) between ble to your spouse (or former spouse). The IRS will yourselves before the end of the year. Don’t take into consider granting relief regardless of whether the un- account transfers satisfying child support obligations derstated tax, deficiency, or unpaid tax is attributable or transfers of very small amounts or value.
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If all these conditions exist, you and your spouse must year, they must disregard community property law in re- report your community income as explained in the follow- porting all their income (except the interest income) from ing discussions. See also Certain community income not community property. They each report on their returns treated as community income by one spouse, earlier. only their own earnings and other income, and their share of the interest income from community property. George Earned income. Treat earned income that isn’t trade reports $26,500 and Sharon reports $34,500. or business or partnership income as the income of the spouse who performed the services to earn the income. Other separated spouses. If you and your spouse are Earned income is wages, salaries, professional fees, and separated but don’t meet the four conditions discussed other pay for personal services. earlier under Spouses living apart all year, you must treat Earned income doesn’t include amounts paid by a cor- your income according to the laws of your state. In some poration that are a distribution of earnings and profits states, income earned after separation but before a de- rather than a reasonable allowance for personal services cree of divorce continues to be community income. In rendered. other states, it is separate income. Trade or business income. Treat income and related deductions from a trade or business that isn’t a partner- Ending the Marital Community ship as those of the spouse carrying on the trade or busi- ness. When the marital community ends as a result of divorce or separation, the community assets (money and property) Partnership income or loss. Treat income or loss are divided between the spouses. Each spouse is taxed from a trade or business carried on by a partnership as on half the community income for the part of the year be- the income or loss of the spouse who is the partner. fore the community ends. However, see Spouses living Separate property income. Treat income from the apart all year, earlier. Income received after the commun- separate property of one spouse as the income of that ity ended is separate income, taxable only to the spouse spouse. to whom it belongs. Social security benefits. Treat social security and An absolute decree of divorce or annulment ends the equivalent railroad retirement benefits as the income of marital community in all community property states. A de- the spouse who receives the benefits. cree of annulment, even though it holds that no valid mar- riage ever existed, usually doesn’t nullify community prop- Other income. Treat all other community income, erty rights arising during the “marriage.” However, you such as dividends, interest, rents, royalties, or gains, as should check your state law for exceptions. provided under your state's community property law.
Example. George and Sharon were married through- A decree of legal separation or of separate mainte- out the year but didn’t live together at any time during the nance may or may not end the marital community. The year. Both domiciles were in a community property state. court issuing the decree may terminate the marital com- They didn’t file a joint return or transfer any of their earned munity and divide the property between the spouses. income between themselves. During the year, their in- comes were as follows: A separation agreement may divide the community property between you and your spouse. It may provide George Sharon that this property, along with future earnings and property acquired, will be separate property. This agreement may Wages ...... $20,000 $22,000 end the community. Consulting business ...... 5,000 Partnership ...... 10,000 In some states, the marital community ends when the Dividends from separate spouses permanently separate, even if there is no formal property ...... 1,000 2,000 agreement. Check your state law. Interest from community property ...... 500 500 Alimony (Community Income) Totals $26,500 $34,500 Payments that may otherwise qualify as alimony aren’t de- ductible by the payer if they are the recipient spouse's part Under the community property law of their state, all the of community income. They are deductible by the payer income is considered community income. (Some states as alimony and taxable to the recipient spouse only to the treat income from separate property as separate in- extent they are more than that spouse's part of community come—check your state law.) Sharon didn’t take part in income. George's consulting business. Ordinarily, on their separate returns they would each Example. You live in a community property state. You report $30,500, half the total community income of are separated but the special rules explained earlier under $61,000 ($26,500 + $34,500). But because they meet the Spouses living apart all year don’t apply. Under a written four conditions listed earlier under Spouses living apart all agreement, you pay your spouse $12,000 of your $20,000 total yearly community income. Your spouse receives no
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79 other community income. Under your state law, earnings those who are 60 years of age and older. TCE volun- of a spouse living separately and apart from the other teers specialize in answering questions about pen- spouse continue as community property. sions and retirement-related issues unique to seniors. On your separate returns, each of you must report Go to IRS.gov/TCE, download the free IRS2Go app, $10,000 of the total community income. In addition, your or call 888-227-7669 for information on free tax return spouse must report $2,000 as alimony received. You can preparation. deduct $2,000 as alimony paid. • MilTax. Members of the U.S. Armed Forces and Amounts paid as alimony or separate mainte- qualified veterans may use MilTax, a free tax service nance payments under a divorce or separation in- offered by the Department of Defense through Military CAUTION! strument executed after 2018 won’t be deductible OneSource. by the payer. Such amounts also won’t be includible in the Also, the IRS offers Free Fillable Forms, which can income of the recipient. The same is true of alimony paid be completed online and then filed electronically re- under a divorce or separation instrument executed before gardless of income. 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payer or in- Using online tools to help prepare your return. Go to cludible in the income of the recipient. IRS.gov/Tools for the following. • The Earned Income Tax Credit Assistant (IRS.gov/ EITCAssistant) determines if you’re eligible for the How To Get Tax Help earned income credit (EIC). • The Online EIN Application (IRS.gov/EIN) helps you If you have questions about a tax issue, need help prepar- get an employer identification number (EIN). ing your tax return, or want to download free publications, • The Tax Withholding Estimator (IRS.gov/W4app) forms, or instructions, go to IRS.gov and find resources makes it easier for everyone to pay the correct amount that can help you right away. of tax during the year. The tool is a convenient, online way to check and tailor your withholding. It’s more Preparing and filing your tax return. After receiving all user-friendly for taxpayers, including retirees and your wage and earnings statements (Form W-2, W-2G, self-employed individuals. The features include the 1099-R, 1099-MISC, 1099-NEC, etc.); unemployment following. compensation statements (by mail or in a digital format) or other government payment statements (Form 1099-G); – Easy to understand language. and interest, dividend, and retirement statements from – The ability to switch between screens, correct pre- banks and investment firms (Forms 1099), you have sev- vious entries, and skip screens that don’t apply. eral options to choose from to prepare and file your tax re- turn. You can prepare the tax return yourself, see if you – Tips and links to help you determine if you qualify qualify for free tax preparation, or hire a tax professional to for tax credits and deductions. prepare your return. – A progress tracker. Free options for tax preparation. Go to IRS.gov to see – A self-employment tax feature. your options for preparing and filing your return online or – Automatic calculation of taxable social security ben- in your local community, if you qualify, which include the efits. following. • The First Time Homebuyer Credit Account Look-up • Free File. This program lets you prepare and file your (IRS.gov/HomeBuyer) tool provides information on federal individual income tax return for free using your repayments and account balance. brand-name tax-preparation-and-filing software or Free File fillable forms. However, state tax preparation • The Sales Tax Deduction Calculator (IRS.gov/ may not be available through Free File. Go to IRS.gov/ SalesTax) figures the amount you can claim if you FreeFile to see if you qualify for free online federal tax itemize deductions on Schedule A (Form 1040). preparation, e-filing, and direct deposit or payment op- Getting answers to your tax questions. On tions. IRS.gov, you can get up-to-date information on • VITA. The Volunteer Income Tax Assistance (VITA) current events and changes in tax law. program offers free tax help to people with • IRS.gov/Help: A variety of tools to help you get an- low-to-moderate incomes, persons with disabilities, swers to some of the most common tax questions. and limited-English-speaking taxpayers who need • IRS.gov/ITA: The Interactive Tax Assistant, a tool that help preparing their own tax returns. Go to IRS.gov/ will ask you questions on a number of tax law topics VITA, download the free IRS2Go app, or call and provide answers. 800-906-9887 for information on free tax return prepa- ration. • IRS.gov/Forms: Find forms, instructions, and publica- tions. You will find details on 2020 tax changes and • TCE. The Tax Counseling for the Elderly (TCE) pro- hundreds of interactive links to help you find answers gram offers free tax help for all taxpayers, particularly to your questions.
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80 • You may also be able to access tax law information in Online tax information in other languages. You can your electronic filing software. find information on IRS.gov/MyLanguage if English isn’t your native language.
Need someone to prepare your tax return? There are Free interpreter service. Multilingual assistance, provi- various types of tax return preparers, including tax prepar- ded by the IRS, is available at Taxpayer Assistance Cen- ers, enrolled agents, certified public accountants (CPAs), ters (TACs) and other IRS offices. Over-the-phone inter- attorneys, and many others who don’t have professional preter service is accessible in more than 350 languages. credentials. If you choose to have someone prepare your tax return, choose that preparer wisely. A paid tax pre- Getting tax forms and publications. Go to IRS.gov/ parer is: Forms to view, download, or print all of the forms, instruc- • Primarily responsible for the overall substantive accu- tions, and publications you may need. You can also down- racy of your return, load and view popular tax publications and instructions (including the Instructions for Forms 1040 and 1040-SR) • Required to sign the return, and on mobile devices as an eBook at IRS.gov/eBooks. Or • Required to include their preparer tax identification you can go to IRS.gov/OrderForms to place an order. number (PTIN). Access your online account (individual taxpayers Although the tax preparer always signs the return, only). Go to IRS.gov/Account to securely access infor- you're ultimately responsible for providing all the informa- mation about your federal tax account. tion required for the preparer to accurately prepare your • View the amount you owe, pay online, or set up an on- return. Anyone paid to prepare tax returns for others line payment agreement. should have a thorough understanding of tax matters. For more information on how to choose a tax preparer, go to • Access your tax records online. Tips for Choosing a Tax Preparer on IRS.gov. • Review your payment history. Coronavirus. Go to IRS.gov/Coronavirus for links to in- • Go to IRS.gov/SecureAccess to review the required formation on the impact of the coronavirus, as well as tax identity authentication process. relief available for individuals and families, small and large businesses, and tax-exempt organizations. Using direct deposit. The fastest way to receive a tax refund is to file electronically and choose direct deposit, Tax reform. Tax reform legislation affects individuals, which securely and electronically transfers your refund di- businesses, and tax-exempt and government entities. Go rectly into your financial account. Direct deposit also to IRS.gov/TaxReform for information and updates on avoids the possibility that your check could be lost, stolen, how this legislation affects your taxes. or returned undeliverable to the IRS. Eight in 10 taxpayers use direct deposit to receive their refunds. The IRS issues Employers can register to use Business Services On- more than 90% of refunds in less than 21 days. line. The Social Security Administration (SSA) offers on- line service at SSA.gov/employer for fast, free, and secure Getting a transcript of your return. The quickest way online W-2 filing options to CPAs, accountants, enrolled to get a copy of your tax transcript is to go to IRS.gov/ agents, and individuals who process Form W-2, Wage Transcripts. Click on either “Get Transcript Online” or “Get and Tax Statement, and Form W-2c, Corrected Wage and Transcript by Mail” to order a free copy of your transcript. Tax Statement. If you prefer, you can order your transcript by calling 800-908-9946. IRS social media. Go to IRS.gov/SocialMedia to see the various social media tools the IRS uses to share the latest Reporting and resolving your tax-related identity information on tax changes, scam alerts, initiatives, prod- theft issues. ucts, and services. At the IRS, privacy and security are • Tax-related identity theft happens when someone paramount. We use these tools to share public informa- steals your personal information to commit tax fraud. tion with you. Don’t post your SSN or other confidential in- Your taxes can be affected if your SSN is used to file a formation on social media sites. Always protect your iden- fraudulent return or to claim a refund or credit. tity when using any social networking site. The following IRS YouTube channels provide short, in- • The IRS doesn’t initiate contact with taxpayers by formative videos on various tax-related topics in English, email, text messages, telephone calls, or social media Spanish, and ASL. channels to request personal or financial information. This includes requests for personal identification num- • Youtube.com/irsvideos. bers (PINs), passwords, or similar information for • Youtube.com/irsvideosmultilingua. credit cards, banks, or other financial accounts. • Youtube.com/irsvideosASL. • Go to IRS.gov/IdentityTheft, the IRS Identity Theft Central webpage, for information on identity theft and Watching IRS videos. The IRS Video portal data security protection for taxpayers, tax professio- (IRSVideos.gov) contains video and audio presentations nals, and businesses. If your SSN has been lost or for individuals, small businesses, and tax professionals. stolen or you suspect you’re a victim of tax-related
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identity theft, you can learn what steps you should amount you owe. For more information on the Offer in take. Compromise program, go to IRS.gov/OIC.
• Get an Identity Protection PIN (IP PIN). IP PINs are Filing an amended return. You can now file Form six-digit numbers assigned to eligible taxpayers to 1040-X electronically with tax filing software to amend help prevent the misuse of their SSNs on fraudulent 2019 Forms 1040 and 1040-SR. To do so, you must have federal income tax returns. When you have an IP PIN, e-filed your original 2019 return. Amended returns for all it prevents someone else from filing a tax return with prior years must be mailed. See Tips for taxpayers who your SSN. To learn more, go to IRS.gov/IPPIN. need to file an amended tax return and go to IRS.gov/ Checking on the status of your refund. Form1040X for information and updates. • Go to IRS.gov/Refunds. Checking the status of your amended return. Go to IRS.gov/WMAR to track the status of Form 1040-X amen- The IRS can’t issue refunds before mid-February 2021 • ded returns. Please note that it can take up to 3 weeks for returns that claimed the EIC or the additional child from the date you filed your amended return for it to show tax credit (ACTC). This applies to the entire refund, up in our system, and processing it can take up to 16 not just the portion associated with these credits. weeks. • Download the official IRS2Go app to your mobile de- vice to check your refund status. Understanding an IRS notice or letter you’ve re- ceived. Go to IRS.gov/Notices to find additional informa- • Call the automated refund hotline at 800-829-1954. tion about responding to an IRS notice or letter.
Making a tax payment. The IRS uses the latest encryp- Contacting your local IRS office. Keep in mind, many tion technology to ensure your electronic payments are questions can be answered on IRS.gov without visiting an safe and secure. You can make electronic payments on- IRS Taxpayer Assistance Center (TAC). Go to IRS.gov/ line, by phone, and from a mobile device using the LetUsHelp for the topics people ask about most. If you still IRS2Go app. Paying electronically is quick, easy, and need help, IRS TACs provide tax help when a tax issue faster than mailing in a check or money order. Go to can’t be handled online or by phone. All TACs now pro- IRS.gov/Payments for information on how to make a pay- vide service by appointment, so you’ll know in advance ment using any of the following options. that you can get the service you need without long wait • IRS Direct Pay: Pay your individual tax bill or estima- times. Before you visit, go to IRS.gov/TACLocator to find ted tax payment directly from your checking or sav- the nearest TAC and to check hours, available services, ings account at no cost to you. and appointment options. Or, on the IRS2Go app, under the Stay Connected tab, choose the Contact Us option • Debit or Credit Card: Choose an approved payment and click on “Local Offices.” processor to pay online, by phone, or by mobile de- vice. The Taxpayer Advocate Service (TAS) • Electronic Funds Withdrawal: Offered only when filing your federal taxes using tax return preparation soft- Is Here To Help You ware or through a tax professional. What Is TAS? • Electronic Federal Tax Payment System: Best option for businesses. Enrollment is required. TAS is an independent organization within the IRS that helps taxpayers and protects taxpayer rights. Their job is • Check or Money Order: Mail your payment to the ad- to ensure that every taxpayer is treated fairly and that you dress listed on the notice or instructions. know and understand your rights under the Taxpayer Bill • Cash: You may be able to pay your taxes with cash at of Rights. a participating retail store. How Can You Learn About Your Taxpayer • Same-Day Wire: You may be able to do same-day wire from your financial institution. Contact your finan- Rights? cial institution for availability, cost, and cut-off times. The Taxpayer Bill of Rights describes 10 basic rights that What if I can’t pay now? Go to IRS.gov/Payments for all taxpayers have when dealing with the IRS. Go to more information about your options. TaxpayerAdvocate.IRS.gov to help you understand what these rights mean to you and how they apply. These are • Apply for an online payment agreement (IRS.gov/ your rights. Know them. Use them. OPA) to meet your tax obligation in monthly install- ments if you can’t pay your taxes in full today. Once What Can TAS Do For You? you complete the online process, you will receive im- mediate notification of whether your agreement has TAS can help you resolve problems that you can’t resolve been approved. with the IRS. And their service is free. If you qualify for • Use the Offer in Compromise Pre-Qualifier to see if their assistance, you will be assigned to one advocate you can settle your tax debt for less than the full who will work with you throughout the process and will do
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82 everything possible to resolve your issue. TAS can help TAS for Tax Professionals you if: TAS can provide a variety of information for tax professio- • Your problem is causing financial difficulty for you, nals, including tax law updates and guidance, TAS pro- your family, or your business; grams, and ways to let TAS know about systemic prob- • You face (or your business is facing) an immediate lems you’ve seen in your practice. threat of adverse action; or • You’ve tried repeatedly to contact the IRS but no one Low Income Taxpayer Clinics (LITCs) has responded, or the IRS hasn’t responded by the date promised. LITCs are independent from the IRS. LITCs represent in- dividuals whose income is below a certain level and need How Can You Reach TAS? to resolve tax problems with the IRS, such as audits, ap- peals, and tax collection disputes. In addition, clinics can TAS has offices in every state, the District of Columbia, provide information about taxpayer rights and responsibili- and Puerto Rico. Your local advocate’s number is in your ties in different languages for individuals who speak Eng- local directory and at TaxpayerAdvocate.IRS.gov/ lish as a second language. Services are offered for free or Contact-Us. You can also call them at 877-777-4778. a small fee for eligible taxpayers. To find a clinic near you, visit TaxpayerAdvocate.IRS.gov/about-us/Low-Income- How Else Does TAS Help Taxpayers? Taxpayer-Clinics-LITC/ or see IRS Pub. 4134, Low Income Taxpayer Clinic List. TAS works to resolve large-scale problems that affect many taxpayers. If you know of one of these broad issues, please report it to them at IRS.gov/SAMS.
To help us develop a more useful index, please let us know if you have ideas for index entries. Index See “Comments and Suggestions” in the “Introduction” for the ways you can reach us.
Claiming parent, when child is head Deductions: A of household 7 Alimony paid 13 Absence, temporary 8 Custody of 8 Alimony recapture 17 Address, change of 2 Death of child: Limits on IRAs 19 Aliens (See Nonresident aliens) Head of household, qualifying Marital 22 Alimony 11, 17 person to file as 7 Dependents: Community income 25 Photographs of missing children 2 Qualifying child 8 Deductibility 12 Child support: Qualifying child (Table 3) 9 Defined 12 Alimony, difference from 14 Qualifying relative 8 Inclusion in income 12 Clearly associated with Qualifying relative (Table 3) 9 Annual exclusion, gift tax 22 contingency 16 Social security numbers 2 Annulment decrees: Contingency relating to child 16 Divorce decrees: Absolute decree 25 Payment specifically designated Absolute decree 25 Amended return required 3 as 16 Amended 13 Considered unmarried 3 Child support under pre-1985 Defined for purposes of alimony 13 Archer MSA 20 agreement 11 Invalid 13 Assistance (See Tax help) Community income 23–26 Unmarried persons 3 Community property 23–26 Divorced parents 8 (See also Community income) Child custody 8 B Ending the marital community 25 Domestic relations Basis: Laws disregarded 23 orders (See Qualified domestic Property received in settlement 21 States 23 relations orders (QDROs)) Benefits paid under QDROs 19 Costs of getting divorce: Domicile 23 Birth of dependent 7 Nondeductible, generally 23 Nondeductible expenses 23 Other nondeductible expenses 23 E C Custody of child 8 Earned income 25 Change of address 2 Equitable relief (See Relief from joint Change of name 2 liability) Child custody 8 D Estimated tax 23 Children: Death of dependent 7 Joint payments 23 Birth of child: Death of recipient spouse. 15 Head of household, qualifying Debts of spouse: person to file as 7 Refund applied to 4
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ITINs (Individual taxpayer Qualifying child, tests for claiming F identification numbers) 2 (Table 3) 9 Filing status 3 Qualifying person, head of Head of household 6 household 7 Form 1040: J Table 2 7 Deducting alimony paid before Joint liability: Qualifying relative, tests for 2018 13 Relief from 2, 4 claiming (Table 3) 9 Reporting alimony received 13 Jointly owned home: Form 1040X: Alimony payments for 14 Annulment, decree of 3 Sale of 22 R Form 8332: Joint returns 4 Recapture of alimony 16 Release of claims to an exemption Change from separate return 6 Refunds: to noncustodial parent 10 Change to separate return 6 Spouse debts, applied to 4 Form 8379: Divorced taxpayers 4 Release of exemption to Injured spouse 4 Joint and individual liability 4 noncustodial parent 10 Form 8857: Relief from joint liability 4 Relief from joint liability 2, 4 Innocent spouse relief 4 Signing 4 Relief from separate return liability: Former spouse: Community income 23 Reporting requirements: Defined for purposes of alimony 13 K Form W-4: Alimony received 13 Kidnapped child: Returns: Withholding 23 Head of household status and 8 Form W-7: Amended return required 3 Individual taxpayer identification Joint (See Joint returns) number (ITIN) 2 Separate (See Separate returns) L Revocation of release of claim to ( Liability for taxes See Relief from an exemption 11 joint liability) Rollovers 19 G Life insurance premiums as Gift tax 22 alimony 14 S H M Sales of jointly owned property 22 Head of household 6 Section 1041 election 21 Marital community, ending 25 Separated parents 8 Health care law 1 Marital status 3 Health savings accounts Separate maintenance decrees 3, Married persons 3 13, 25 (HSAs) 20 Medical savings accounts Home owned jointly: Separate returns 5 (MSAs) 20 Change to or from joint return 6 Alimony payments for 14 Missing children, photographs of 2 Sale of 22 Community or separate income 5 Mortgage payments as alimony 14 Itemized deductions 5 HSAs (Health savings MSAs (Medical savings accounts) 20 Relief from liability 23 accounts) 20 Separate liability 5 Tax consequences 5 I N Separation agreements 25 Identification number 2 Name, change of 2 Defined for purposes of alimony 13 Income 23 Nondeductible expenses 23 Separation of liability (See Relief (See also Community income) Nonresident aliens: from joint liability) Alimony received 13 Joint returns 4 Settlement of Individual retirement arrangements Withholding 13 property (See Property (IRAs) 19 settlements) Individual taxpayer identification Social security benefits 25 numbers (ITINs): P Social security numbers (SSNs): Processing 2 Parent: Alimony recipient's number Renewal 2 Head of household, claim for 7 required 13 Injured spouse 4 Parents, divorced or separated 8 Dependents 2 Innocent spouse relief 4 Property settlements 19–22 Spousal IRA 19 Insurance premiums 14 Publications (See Tax help) Spouse: Invalid decree 13 Defined for purposes of alimony 13 IRAs (Individual retirement Refund applied to debts 4 arrangements) 19 Q Statute of limitations: Itemized deductions on separate Qualified domestic relations orders Amended return 3 returns 5 (QDROs) 19 Injured spouse allocation 4
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84 Renewal 2 T Tax withholding (See Withholding) W Tables and figures: Third parties: Withholding: Property transferred pursuant to Alimony payments to 14, 15 Change of 23 divorce (Table 5) 21 Property settlements, transfers Nonresident aliens 13 Qualifying person for head of to 20 Worksheets: household (Table 2) 7 Tiebreaker rules 11 Recapture of alimony (Worksheet Rules for claiming dependents 1) 17 (Table 3) 9 Tax help 26 U Taxpayer identification numbers: Underpayment of alimony 14 Processing 2 Unmarried persons 3
Publication 504 (2020) PARENTING ISSUES 1
Overview of Custody
Massachusetts General Laws, Chapter 208, Section 31 describes two forms of custody: physical custody, which refers to where the child lives; and legal custody, which indicates who makes major decisions about the child. Both forms of custody are described in greater detail below.
The “happiness and welfare” of the children determines their custody. In general, consideration of the child’s physical, mental, moral and emotional needs guides judges in identifying an arrangement most likely to meet the child’s “best interests.”
A judge can award physical or legal custody to either parent. The rights of parents are equal in the absence of misconduct. Misconduct, such as domestic abuse, substance abuse, and abandonment of the child might convince a judge to give custody to the other parent.
Judges might focus on each individual child's happiness and welfare. For example, a judge can create different custody arrangements for each child of the same family.
Regardless of who has legal custody, courts refer to a parent with physical custody as the custodial parent and the parent without physical custody as the non-custodial parent. Visitation describes time children spend with a non-custodial parent.
Parents in divorce often work together to create a cooperative or co-parenting plan. As described in a separate section of these materials, co-parenting plans may include visitation schedules, descriptions of how parents will communicate in the future, and expectations regarding care for the children.
In Massachusetts, all divorcing parents with children under age 18 must attend and complete an approved Parent Education Program. This requirement applies to both contested and uncontested divorces, whether or not there is an agreement. Parents separately attend two 2 ½ hour sessions. The entire Program costs $80.00 each, or $5.00 for individuals who receive a fee waiver from the court.
Physical Custody (where a child lives) Parents can agree to either sole or joint (shared) physical custody for each child. Concerned with consistency and stability in the lives of children, judges might prefer giving sole physical custody to the parent who has been primarily responsible for taking care of the child.
a) Sole Physical Custody (the child resides with one parent). Children can spend time with non-custodial parents through visitation, which may be supervised or unsupervised. Some visitation schedules are flexible, others provide for specific drop-off and pick-up times. Visitation can last for a few hours, overnight, or for weeks at a time; a visitation schedule might even give children equal time with
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both parents. Since parents with sole physical custody can have more costs raising a child, judges may award those parents more property or child support.
Advantages of sole physical custody might include: • more consistency and stability of one primary residence; and • practicality of one home address and phone number for the child.
Disadvantages of sole physical custody might include: • no built-in break for custodial parent; and • increased costs for substitute care (baby-sitters, day-care, etc).
b) Joint Physical Custody (the child alternates periods of residing with each parent). There is no legal requirement about the amount of time that a child should reside with each parent. For example, a child might spend two weeks living with one parent, and the next three weeks living at the other parent's house.
Advantages of joint physical custody might include: • a surface appearance of equal responsibility between the parents; • a built-in break for each parent when children are at the other home; and • decreased costs for substitute care.
Disadvantages of joint physical custody might include: • less consistency and stability with two full-time homes; • impracticality of two home addresses and two phone numbers for the child; • increased costs of providing for two full-time homes (doubling expenses); and • physical and emotional strain of children moving between two homes.
Legal Custody (who makes major decisions about the child) A parent with legal custody has the final say when making major decisions about the child's welfare including matters of education, medical care and emotional, moral and religious development. Parents can agree to either sole or joint (shared) legal custody for each child. Some judges consider sole legal custody if the parents seem incapable of communicating effectively.
a) Sole Legal Custody. In sole legal custody arrangements, one parent has the right and responsibility to make major decisions about the child’s welfare.
Advantages of sole legal custody might include: • fewer arguments between the parents regarding major decisions.
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Disadvantages of sole legal custody might include: • less communication between parents regarding the children’s welfare; and • reliance on only one parent’s judgment in making major decisions.
a) Joint Legal Custody. Parents share responsibility for making major decisions about the child’s welfare in joint legal custody arrangements. Judges might prefer joint legal custody where it gives a child the benefit of the parents’ combined judgment by allowing both parents to participate in major decision- making. Parents with joint legal custody often plan how to communicate about the child's welfare.
Advantages of joint legal custody might include: • more communication between parents regarding the children’s welfare; • use of the parents’ combined judgment in making major decisions.
Disadvantages of joint legal custody might include: • more arguments between the parents regarding major decisions.
Split Custody (some children with each parent) In some cases, a consideration of the children’s best interests might lead to a discussion about “splitting them up.” For example, if a couple has two children, the father can have sole physical custody of one child and the mother can have sole physical custody of the other.
Advantages of split custody might include: • placement of a child in the physical place best suited to meet that child’s needs; • residence with the parent best suited to meet a particular child’s needs; and • more easily defined division of parenting responsibilities.
Disadvantages of split custody might include: • less access to emotional support among siblings; • relationships among siblings may become weaker; and • increased costs of providing for two full-time homes (doubling expenses).
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Suggested Bibliography
• Robert E. Lee, Parenting After the Smoke Clears: How to end the fighting, Family Advocate, (Summer 1990) (suggesting that parents must cooperate to parent adequately and to rebuild their own lives after separation or divorce).
• Hon. Arline Rotman, Introductory Remarks About the Cooperative Parenting Plans, Family Law Section News, (Massachusetts Bar Association, Nov. 1993) (recognizing those responsible for developing the Cooperative Parenting Plans and presenting a vocabulary for the assessment of conflict).
• Cooperative Parenting Plans (guidelines used by Massachusetts courts to "assist parents, lawyers, family service officers, mediators, mental health professionals and judges in establishing a parenting plan which best meets the needs of individual children" when parents intend to live apart).
• David H. Lee, Child Custody: Comment Regarding M.G.L. c. 208, § 31, The Massachusetts Family Law Journal, Vol 8, No 3 (Sept 1990) (discussing issues of meaning and interpretation of Massachusetts' law on child custody).
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SAMPLE CO-PARENTING PLAN
1. Custody. The Father and Mother shall share joint legal custody of the child, and shall share the child’s physical custody consistent with the parenting plans adopted from time to time by the parties. When the child is residing with the Mother, the Mother may make any and all decisions relating to the child’s day-to-day functions and activities. When the child is residing with the Father, the Father may make any and all decisions relating the child’s day-to-day functions and activities.
2. Co-parenting.
a. Regular Schedule. The Mother and Father have utilized, with success, a parenting plan in place since January, 2018. A copy of the plan is attached as Schedule “A.” This plan shall remain in effect absent a further agreement between the Mother and Father. In making changes or adjustments to this or any successor parenting plan, the Mother and Father shall continue to work with a child psychologist and a mediator before either party takes a potential dispute to court.
b. Holidays/Vacations. The Father and Mother shall share (as according the “Schedule A”) or alternate (or otherwise as they can mutually agree) having the child with them on major holidays, and shall share (as according to “Schedule A”) or alternate school vacations and the summer vacation, as they may agree.
3. Serious Illness, Accident or Medical Emergency
a. Notwithstanding the joint legal custodial arrangement, either parent may give consent for emergency medical treatment for the child.
b. In the event of any serious illness or accident, the parent with whom the child is then staying shall immediately notify the other parent, and that parent shall have reasonable opportunity to visit with the child during such an illness or after an accident, notwithstanding such other co-parenting schedule as may then be in effect.
4. Consultation by Parties
a. The Father and Mother shall consult with each other from time to time (by correspondence or telephone, if a personal conference is impractical) in an effort to agree on all significant matters pertaining to the child’s health, welfare, education and upbringing, with a view to the adoption, as far as is possible, or a mutually harmonious policy regarding their upbringing. First
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consideration shall be given to the child’s welfare along with the desires, schedules and convenience of both parents.
b. Each party agrees to keep the other reasonably and timely informed of the child’s academic, extracurricular, physical, emotional, psychological, and social status and/or activities, and any significant changes therein, and to exchange freely information concerning such matters.
SCHEDULE A
Sunday Monday Tuesday Wednesday Thursday Friday Saturday Father Mother Mother Father Father Mother Mother
Mother Mother Mother Father Father Father Father
Father Mother Mother Father Father Mother Mother
Mother Mother Mother Father Father Father Father
Father Mother Mother Father Father Mother Mother
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Psychological and Emotional Aspects of Divorce By Kathleen O'Connell Corcoran, Ph.D.
Reprinted with permission from www.mediate.com
A. Divorce Effects and Prevalence B. Effects of Divorce on Children C. Emotional Stages of Divorce D. Typical Reactions of Children to Divorce E. Signs of Stress in Children
Divorce Effects and Prevalence
It may be helpful to understand a little about divorce and the typical effects it has on men, women and children. The divorce rate in the United States is the highest in the world. Fifty percent of marriages end in divorce. Sixty-seven percent of all second marriages end in divorce. As high as these figures are, what is also true is that the divorce rate appears to be dropping. The reasons for this change are not clear. Many people cannot afford to divorce, many people cannot afford to marry. Another reason is that "baby boomers," who account for a large proportion of our population are no longer in their 20s and 30s, the ages when divorce is most prevalent. The societal expectation is that divorced life is less satisfying than married life. Divorce is associated with an increase in depression--people experience loss of partner, hopes and dreams, and lifestyle. The financial reality of divorce is often hard to comprehend: the same resources must now support almost twice the expenses.
Fifty percent of all children are children of divorce. Twenty-eight percent of all children are born of never married parents. Divorce is expensive. Aid for Dependent Children (AFDC) resources are drained by the needs of divorced and single parent families; including the cost of collecting child support.
Here are some of the experiences of men and women in divorce.
For women:
1. Women initiate divorce twice as often as men
2. 90% of divorced mothers have custody of their children (even if they did not receive it in court)
3. 60% of people under poverty guidelines are divorced women and children
4. Single mothers support up to four children on an average after-tax annual income of $12,200
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5. 65% divorced mothers receive no child support (figure based on all children who could be eligible, including never-married parents, when fathers have custody, and parents without court orders); 75% receive court-ordered child support (and rising since inception of uniform child support guidelines, mandatory garnishment and license renewal suspension)
6. After divorce, women experience less stress and better adjustment in general than do men. The reasons for this are that (1) women are more likely to notice marital problems and to feel relief when such problems end, (2) women are more likely than men to rely on social support systems and help from others, and (3) women are more likely to experience an increase in self-esteem when they divorce and add new roles to their lives.
7. Women who work and place their children in child care experience a greater stigma than men in the same position. Men in the same position often attract support and compassion.
For men:
1. Men are usually confronted with greater emotional adjustment problems than women. The reasons for this are related to the loss of intimacy, the loss of social connection, reduced finances, and the common interruption of the parental role.
2. Men remarry more quickly than women.
3. As compared to "deadbeat dads," men who have shared parenting (joint legal custody), ample time with their children, and an understanding of and direct responsibility for activities and expenses of children stay involved in their children's lives and are in greater compliance with child support obligations. There is also a greater satisfaction with child support amount when negotiated in mediation. Budgets are prepared, and responsibility divided in a way that parents understand.
4. Men are initially more negative about divorce than women and devote more energy in attempting to salvage the marriage.
Effects of Divorce on Children
In the last few years, higher-quality research which has allowed the "meta-analysis" of previously published research, has shown the negative effects of divorce on children have been greatly exaggerated. In the past we read that children of divorce suffered from depression, failed in school, and got in trouble with the law. Children with depression and conduct disorders showed indications of those problems predivorce because there was parental conflict predivorce. Researchers now view conflict, rather than the divorce or residential schedule, as the single most critical determining factor in children's post-divorce adjustment. The children who succeed after divorce, have parents who can communicate effectively and work together as parents.
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Actually, children's psychological reactions to their parents' divorce vary in degree dependent on three factors: (1) the quality of their relationship with each of their parents before the separation, (2) the intensity and duration of the parental conflict, and (3) the parents' ability to focus on the needs of children in their divorce.
Older studies showed boys had greater social and academic adjustment problems than girls. New evidence indicates that when children have a hard time, boys and girls suffer equally; they just differ in how they suffer. Boys are more externally symptomatic than girls, they act out their anger, frustration and hurt. They may get into trouble in school, fight more with peers and parents. Girls tend to internalize their distress. They may become depressed, develop headaches or stomach aches, and have changes in their eating and sleeping patterns.
A drop in parents' income often caused by the same income now supporting two households directly affects children over time in terms of proper nutrition, involvement in extracurricular activities, clothing (no more designer jeans and fancy shoes), and school choices. Sometimes a parent who had stayed home with the children is forced into the workplace and the children experience an increase in time in child care.
A child's continued involvement with both of his or her parents allows for realistic and better balanced future relationships. Children learn how to be in relationship by their relationship with their parents. If they are secure in their relationship with their parents, chances are they will adapt well to various time-sharing schedules and experience security and fulfillment in their intimate relationships in adulthood. In the typical situation where mothers have custody of the children, fathers who are involved in their children's lives are also the fathers whose child support is paid and who contribute to extraordinary expenses for a child: things like soccer, music lessons, the prom dress, or a special class trip. One important factor which contributes to the quality and quantity of the involvement of a father in a child's life is mother's attitude toward the child's relationship with father. When fathers leave the marriage and withdraw from their parenting role as well, they report conflicts with the mother as the major reason.
The impact of father or mother loss is not likely to be diminished by the introduction of stepparents. No one can replace Mom or Dad. And no one can take away the pain that a child feels when a parent decides to withdraw from their lives. Before embarking on a new family, encourage clients to do some reading on the common myths of step families. Often parents assume that after the remarriage "we will all live as one big happy family." Step family relationships need to be negotiated, expectations need to be expressed, roles need to be defined, realistic goals need to be set.
Most teenagers (and their parents) eventually adjust to divorce and regard it as having been a constructive action, but one-third do not. In those instances, the turbulence of the divorce phase (how adversarial a battle it is), has been shown to play a crucial role in creating unhealthy reactions in affected teenagers. Joan Kelly, PhD, former president of the Academy of Family Mediators and prominent divorce researcher from California reports that, depending on the strength of the parent-child bond at
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the time of divorce, the parent-child relationship diminishes over time for children who see their fathers less than 35% of the time. Court-ordered "standard visitation" patterns typically provide less.
# Days Every other weekend 48 4 weeks in summer 28 ½ spring break 3 ½ winter break 7 ½ holidays 4 Total 90 days = 25% Add 1 day per week 44 Total 134 days = 35%
Divorce also has some positive effects for children. Single parents are often closer to their children than married parents were. This is can also be negative as when a child takes on too much responsibility because one or both parents are not functioning well as a parent, or when a parent talks to a child about how hurt they are by the other parent, or how horrible that other parent is. Often a separated parent will make an effort to spend quality time with the children and pay attention to their desires (Disneyland, small gifts, phone calls, etc). And you can imagine that some children might find some benefit in celebrating two Christmases and birthdays each year. If both parents remarry, they may have twice as many supportive adults/nurturers. At the very least, when parents can control their conflict, the children can experience freedom from daily household tension between parents.
Emotional Stages of Divorce
The decision to end a relationship can be traumatic, chaotic, and filled with contradictory emotions. There are also specific feelings, attitudes, and dynamics associated with whether one is in the role of the initiator or the receiver of the decision to breakup. For example, it is not unusual for the initiator to experience fear, relief, distance, impatience, resentment, doubt, and guilt. Likewise, when a party has not initiated the divorce, they may feel shock, betrayal, loss of control, victimization, decreased self esteem, insecurity, anger, a desire to "get even," and wishes to reconcile.
To normalize clients experiences during this time, it may be helpful to know that typical emotional stages have been identified with ending a relationship. It may also be helpful to understand that marriages do not breakdown overnight; the breakup is not the result of one incident; nor is the breakup the entire fault of one party. The emotional breaking up process typically extends over several years and is confounded by each party being at different stages in the emotional process while in the same stage of the physical (or legal) process.
It is also quite normal to do different things to try to create distance from the former partner while divorcing. Unfortunately, this distancing often takes the form of fault finding. Not to be
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disrespectful, but it's not unlike the process one goes through in deciding to buy a new car: somehow every flaw in that favorite old car needs to be noticed and exaggerated in order to feel okay about selling it. Also, if the other person is portrayed as really awful, one can escape any responsibility for the end of the marriage. A common response to divorce is to seek vengeance. When parties put their focus on getting even, there is an equal amount of energy expended on being blameless. What's true is that blaming and fault finding are not necessary or really helpful. Psychologist Jeffrey Kottler has written a very helpful book on this subject entitled Beyond Blame: A New Way of Resolving Conflicts in Relationships, published by Jossey- Bass.
Another normal rationalization is that the marriage was a wholly unpleasant experience and escaping it is good. Or the marriage was unpleasant and now the other partner must make this up in the divorce. Thinking that the marriage was wholly unpleasant is unfair to both parties and can hinder emotional healing. Both stayed in the marriage for as long as they did because there were some good things about it. There were also some things that did not work for them and these are why they are divorcing.
Much of your clients' healing will involve acceptance, focusing on the future, taking responsibility for their own actions (now and during the marriage), and acting with integrity. Focusing on the future they would like to create may require an acknowledgment of each other's differing emotional stages and a compassionate willingness to work together to balance the emotional comfort of both parties.
The following information on the emotional stages of ending a relationship is provided to help parties through the emotional quagmire of ending a relationship and assist in their personal healing.
I. DISILLUSIONMENT OF ONE PARTY (sometimes 1-2 years before verbalized)
A. Vague feelings of discontentment, arguments, stored resentments, breaches of trust
B. Problems are real but unacknowledged
C. Greater distance; lack of mutuality
D. Confidential, fantasy, consideration of pros and cons of divorce
E. Development of strategy for separation
F. Feelings: fear, denial, anxiety, guilt, love, anger, depression, grief
II. EXPRESSING DISSATISFACTION (8-12 months before invoking legal process)
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A. Expressing discontent or ambivalence to other party
B. Marital counseling, or C. Possible honeymoon phase (one last try)
D. Feelings: relief (that it's out in the open), tension, emotional roller coaster, guilt, anguish, doubt, grief
III. DECIDING TO DIVORCE (6-12 months before invoking legal process)
A. Creating emotional distance (i.e., disparaging the other person/situation in order to leave it)
B. Seldom reversible (because it's been considered for awhile)
C. Likely for an affair to occur
D. Other person just begins Stage I (considering divorce) and feels denial, depressed, rejected, low self-esteem, anger
E. Both parties feel victimized by the other
F. Feelings: anger, resentment, sadness, guilt, anxiety for the family, the future, impatience with other, needy
IV. ACTING ON DECISION (beginning the legal process)
A. Physical separation
B. Emotional separation (complicated by emotional flareups)
C. Creating redefinition (self orientation)
D. Going public with the decision
E. Setting the tone for the divorce process (getting legal advice and setting legal precedent: children, support, home)
F. Choosing sides and divided loyalties of friends and families
G. Usually when the children find out (they may feel responsible, behave in ways to make parents interact)
H. Feelings: traumatized, panic, fear, shame, guilt, blame, histrionics
V. GROWING ACCEPTANCE (during the legal process or after)
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A. Adjustments: physical, emotional
B. Accepting that the marriage wasn't happy or fulfilling
C. Regaining a sense of power and control, creating a plan for the future, creating a new identity, discovering new talents and resources
D. This is the best time to be in mediation: parties can look forward and plan for the future; moods can be more elevated (thrill of a second chance at life)
VI. NEW BEGINNINGS (completing the legal process to four years after)
A. Parties have moved beyond the blame and anger to forgiveness, new respect, new roles
B. Experiences: insight, acceptance, integrity. Comparing Mediation and Litigation. Why is mediation a compassionate and appropriate venue for helping people in divorce? On the average, it takes family members approximately four to eight years to recover from the emotional and financial expense of a bitter adversarial divorce. In an adversarial divorce, there is no possible resolution of the emotional issues, only decreased trust and increased resentment.
A litigated divorce can cost each party $5,000 to $35,000. The focus is on assigning blame and fault and skirmishing for the most powerful position (changing locks, freezing bank accounts, getting temporary custody of the children). Communications between parties break down. Negotiations proceed through attorneys and are strategic and positioned. Attorneys have an ethical responsibility to zealously advocate for the best interest of their client. Often there is no consideration of the best interests of the children or recognition for the need for parties to have an ongoing relationship because they have children, friends, extended family, and community together. Going to court is an expensive risk; someone who does not know you makes decisions for you that will affect your whole life.
Mediators may save clients thousands of dollars in immediate and future legal and counseling fees. Mediators can focus parties on creating their best possible future and help parties resolve their emotional issues for the best interests of their children and their own psychological well being. Mediators can help parties feel understood, accept responsibility for the failure of the marriage and, when there are children, begin to reshape their relationship from one of partners to coparents. Mediators can empower clients by helping them be at their best (rather than their worst) during a challenging time in their lives, enable them to have an active role in their separating (creative choice vs. court imposition), create a clear and understandable road map for the future, make informed decisions, and to look back at their behavior in the mediation of their divorce with integrity and self respect.
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Typical Reactions of Children to Divorce
Much of children's post-divorce adjustment is dependent on (1) the quality of their relationship with each parent before the divorce, (2) the intensity and duration of the parental conflict, and (3) the parents' ability to focus on the needs of the children in the divorce. Typically, children whose parents are going through a rough divorce engage in behaviors which are designed to help them feel secure. What follows are some typical experiences of children to divorce and separation:
A. DENIAL
This especially occurs in young children and surfaces as story telling (Mommy and Daddy and me going to Disneyland; we're moving into a duplex and Daddy will live next door; they will also have reconciliation fantasies).
B. ABANDONMENT
When parents separate, children worry who will take care of them. They are afraid they too are divorceable and will be abandoned by one or both of their parents. This problem is worsened by one or both parents taking the children into their confidence, talking about the other parent in front of the children, using language like "Daddy is divorcing us," being late for pick-up, or abducting the children. Children who are feeling insecure will say things to a parent which is intended to evoke a mama bear/papa bear response (a demonstration of protectiveness). If children do not have "permission" to have a good relationship with the other parent, or if they think they need to "take care of" one of their parents in the divorce, they are likely to end up having feelings of divided loyalties between their parents or, in the extreme, they may become triangulated with one parent against the other parent.
C. PREOCCUPATION WITH INFORMATION
Children will want details of what is happening and how it affects them. Communication from the parents needs to be unified and age appropriate.
D. ANGER AND HOSTILITY
Children may express anger and hostility with peers, siblings, or parents. School performance may be impaired. Hostility of children toward parents is often directed at the parent perceived to be at fault. Hostility turned inward looks like depression in children.
E. DEPRESSION
Lethargy, sleep and eating disturbances, acting out, social withdrawal, physical injury (more common in adolescents).
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F. IMMATURITY/HYPERMATURITY
Children may regress to an earlier developmental stage when they felt assured of both parents' love. They may do some "baby-talk" or wet their beds. Children may become "parentified" by what they perceive to be the emotional and physical needs of their parents ("Someone needs to be in charge here.")
G. PREOCCUPATION WITH RECONCILIATION
The more conflict there is between the parents, the longer children hold onto the notion of their parents' reconciliation. It is clear that the parents are not "getting on" with their lives. Children will often act out in ways which force their parents to interact (negatively or positively). Children whose parents were very conflictual during the marriage often mistake the strong emotions of conflict with intimacy. They see the parents as engaged in an intimate relationship.
H. BLAME AND GUILT
Because so much marital conflict may be related to the stress of parenting, children often feel responsible for their parents' divorce--they feel that somehow their behavior contributed to it. This is especially true when parents fight during exchanges of the children or in negotiating schedules: children see that parents are fighting over them. They may try to bargain their parents back together by promises of good behavior; they may have difficulty with transitions or refuse to go with the other parent.
I. ACTING OUT
Children will often act out their own and their parents' anger. In an attempt to survive in a hostile environment, children will often take the side of the parent they are presently with. This may manifest in refusals to talk to the other parent on the phone or reluctance to share time with the other parent. Adolescents will typically act out in ways similar to how the parents are acting out. In summary, expect that children will test a parent's loyalty, experience loyalty binds, not want to hurt either parent, force parents to interact because they don't want the divorce, try to exert some power in the situation, express anger over the divorce, occasionally refuse to go with the other parent (normal divorce stress, loyalty conflict/triangulation, or they may simply not want to stop doing what they're doing at the moment--similar to the reaction we've all gotten when we pick our children up from child care, or we want to go home from the park).
The most common problem which arise tend to stem from triangulation, divided loyalties, and projection. Some indicators of each are:
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a. Triangulation: Child refuses to have time with the other parent or talk to the other parent on the phone, child badmouths the other parent.
b. Divided loyalties: When a child tells each parent different and opposing things about what they want it is a good indication that the child is trying to please both parents and is experiencing divided loyalties.
c. Projection: Children are barometers of a parent's emotional well-being. Usually a parent reporting the stress of a child can not see that the child is acting on the parent's anxiety. Parents should ask themselves how they are feeling about the divorce, the other parent, and the time sharing arrangements before assuming the child is having difficulty adjusting or assuming the problem is with the other household.
Signs of Stress in Children Sometimes parents need help identifying stress in children, especially little ones. What follows are some typical experiences and signs of stress in children of different ages.
I. INFANTS AND TODDLERS:
A. Regression in terms of sleeping, toilet training or eating; slowing down in the mastery of new skills B. Sleep disturbances (difficulty gong to sleep; frequent waking) C. Difficulty leaving parent; clinginess D. General crankiness, temper tantrums, crying.
II. THREE TO FIVE YEARS:
A. Regression: returning to security blankets and discarded toys, lapses in toilet training, thumb sucking B. Immature grasp of what has happened; bewildered; making up fantasy stories C. Blaming themselves and feeling guilty D. Bedtime anxiety; fitful/fretful sleep; frequent waking E. Fear of being abandoned by both parents; clinginess F. Greater irritability, aggression, temper tantrums.
III. SIX TO EIGHT YEARS:
A. Pervasive sadness; feeling abandoned and rejected B. Crying and sobbing C. Afraid of their worst fears coming true D. Reconciliation fantasies E. Loyalty conflicts; feeling physically torn apart F. Problems with impulse control; disorganized behavior.
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IV. NINE TO TWELVE YEARS:
A. Able to see family disruption clearly; try to bring order to situation
B. Fear of loneliness C. Intense anger at the parent they blame for causing the divorce D. Physical complaints; headaches and stomach aches E. May become overactive to avoid thinking about the divorce F. Feel ashamed of what's happening in their family; feel they are different from other children.
V. ADOLESCENTS:
A. Fear of being isolated and lonely B. Experience parents as leaving them; feel parents are not available to them C. Feel hurried to achieve independence D. Feel in competition with parents E. Worry about their own future loves and marriage; preoccupied with the survival of relationships F. Discomfort with a parent's dating and sexuality G. Chronic fatigue; difficulty concentrating H. Mourn the loss of the family of their childhood.
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Listening to Affective/Emotional Content in Mediations
1. Why listen to affective material? 2. How to listen to affective material? 3. When to listen to affective material? 4. When to redirect/contain affective material? 5. How to redirect/contain affective material?
1. Why listen?
• To develop empathy, make a connection, facilitate a shift. • Often, this is the first shift that must happen before anything else can happen. • Listening to another helps create an alliance, a connection which is useful in the building of trust.
When someone feels heard, understood, the problem itself may not be different but the person is different. Being listened to and understood allows for the possibility of a shift in the person toward openness, increasing the party’s willingness/capacity to be available to listen to another.
2. How to listen?
• Attend with presence and authenticity. (Feelings are not right or wrong, they just are)
• Let the parties know you are listening to what they are expressing:
“I get that this is a very difficult issue for you”
“I imagine this brings up a lot of pain for you”
“ I can see this is quite upsetting/makes you angry”
“I understand this is hard for you right now”
3. When to listen? • Listen when the parties need to be heard! Watch for cues; be sensitive to when someone needs some of this kind of attention. Depending on your style, and certainly on the disputants’ needs, and the nature of the issues at hand. Do you ever elicit emotional content? Sometimes you may…..
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When it will serve the disputant to move beyond where they may be stuck. (In anger, in sadness). Venting, connecting.
4. When to redirect/Contain?
• When the emotional expression does not serve/becomes counterproductive to the mediation process:
- Anger only meant to harm/hurt another (in a joint session); anger out of control (totally subjective, when you are feeling not in control of the process).
- Sadness that doesn’t move towards completion within a few minutes.
- When you sense that the emotional expression isn’t serving to connect them to you in your role as mediator, or serving to vent as a part of the story telling.
As a mediator, you do not want to be in the position of working with this material, only allowing it to a certain extent, as long as it seems to be a part of the process of moving forward in the mediation, towards opening the person up to you, or to the other disputant.
5. How to redirect/contain? (after acknowledging the feelings…) try:
- Your feelings are very deep about this, and maybe you can get support for this outside of this mediation.
- We will need to move on in our process...is there something you need in order to help you shift gears here?
- Would you like to take a break so you can feel more ready to proceed with the mediation?
- I understand that you are angry, that is very clear. We’d like to help you move beyond this towards some form of solution.
- This kind of (expression of anger) (outburst) (behavior) will not work in the mediation. Let’s take a break so you can pull things together in a way that will make it possible for us to go on with the mediation.
- This kind of thing can’t be a part of the mediation. What do you need to help you control yourself?
- If you can’t contain this sort of outburst, we will have to stop.
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NOTABLE DATES
DATE PARENT: PARENT:
New Year’s Eve December 31______
New Year’s Day January 1 ______
Martin Luther King Day (Observed) ______
President’s Day ______
Spring Break ______
Mother’s Day ______
Memorial Day (Observed) ______
Summer Break ______
Father’s Day ______
Independence Day July 4 ______
Labor Day ______
Columbus Day (Observed) ______
Halloween ______
Thanksgiving Day ______
Winter Break ______
School Institute Days ______
______
______
______
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Father’s Birthday ______
Mother’s Birthday ______
Child’s Birthday _Name:______
Child’s Birthday _Name:______
Child’s Birthday _Name:______
Religious Holidays:
______
______
______
______
______
______
______
Other:
______
______
______
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The above PowerPoint (pages 60-70) is from Professor Robert Emery.
You may also be interested in information you can find at Dr. Emery's website:
http://emeryondivorce.com
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SPECIAL ISSUES 1
SCREENING FOR DOMESTIC VIOLENCE
Facts about domestic violence1:
. Abuse is estimated to occur in 30% of marriages.
. Only 5% of reported spouse abuse victims are men.
Domestic violence issues in mediation are hotly contested in the field with extreme views being held.
Many mediators advocate pre- and on-going screening for domestic violence because they believe that no mediation should occur because of the likelihood of coercion and retaliation, resulting in an extreme power imbalance. These mediators make an assumption that the courts are better able to handle domestic violence issues and equalize any power imbalances with an adjudicatory process. Some mediators believe that any incidence of domestic violence should automatically exclude a case from mediation. Others believe that a thorough screening to determine the extent of the abuse and the ability of the abused spouse to effectively participate is sufficient.
Others believe that the adjudicatory process doesn’t provide any magical solutions and that screening isn’t necessary, required or appropriate. Since the abused spouse is disadvantaged in the marriage and is coming to mediation in order to end the marriage, the mediator’s job is to assist the couple in attaining that goal.
Some courts that mandate mediation in divorce and parenting cases exempt cases from mediation in which domestic violence is or was an issue. Others do not.
The advantages of screening are several:
. The abused spouse may receive appropriate referrals for necessary services, such as safe shelter, legal representation, protection from abuse orders, that may help to protect her/his rights and safety
. Self-determination and voluntariness may not be present in a domestic violence situation, going against the basic principles upon which mediation is built.
. The abused spouse may not be an effective advocate for him/herself in the mediation process.
. Studies have found more abuse occurs after mediation sessions than after trials2.
1 Alison E. Gerencser, “Family Mediation: Screening for Domestic Abuse,” Florida State University Law Review, 1995. 2 Lisa G. Lerman, “Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women,” 7 Harrv. Women’s Law Journal 57 (1984)
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SCREENING FOR DOMESTIC VIOLENCE
Some disadvantages of screening include:
. Many abused spouses will deny abuse for any number of reasons, including fear, embarrassment, and lack of knowledge that their experience is abnormal. Therefore, a simple screening process may not be as effective as desired.
. A simple screening process may not identify the presence or history of domestic violence.
. Mediators may have limited skills and abilities to conduct a thorough screening.
. A thorough screening may require extensive interviewing and observation by different people, which may be time and cost prohibitive.
Types and Levels of Abuse Abuse may be physical, psychological, and/or economic.
Pervasive, frequent abuse This type of abuse carries with it a systemic pattern of domination and control by the abuser. Its psychological effect on the victim is enormous and lasting.
Episodic, intermittent abuse This type of abuse is unpredictable and may be triggered by episodic alcohol abuse. Its very unpredictability causes great harm to the victim who lives in fear of triggering the abuse. An example is George, who drinks rarely but, when he does, loses total control. Evelyn never knows when he might go on a binge. When he comes home drunk, he pushes her around, has broken her nose twice, and has needed to be restrained by their oldest son, who also suffered a broken nose. In the past five years, George got drunk four times, at varying intervals.
Isolated or single incidents of abuse These may be caused by external and/or unusual stress factors that are unlikely to be repeated. The mediator must be careful in screening for and interpreting such incidents. For example, Sally reports that Fred, her husband of 30 years, hit her once 3 years ago when he was laid off from his job of 19 years two weeks after his mother died, got drunk (an unusual event), and had a car accident. Sally is not sure whether Fred intended to hit her, since he was very drunk and was flailing about, but he did cause a bruise on her thigh. This event is unlikely to be repeated without extreme stress. Another example of an isolated incident involves James, who beat Janice to the point where she needed to be hospitalized for three weeks with internal injuries and multiple fractures, following his discovery that she was having an affair with their neighbor. He also beat the neighbor. This event should be considered to be much more serious and likely to be repeated.
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SCREENING FOR DOMESTIC VIOLENCE
Domestic Violence Screening Scenarios
In the following scenarios, determine if you believe that mediation is 1) appropriate, 2) inappropriate, 3) or you need more information before making a determination:
1. Arlene and Will have been married thirteen years and have five children. Arlene underwent a mastectomy for breast cancer approximately two years ago. She continues to be in remission. Since then, the marriage has foundered. Will has no interest in Arlene sexually any more and Arlene repeatedly asks Will if she’s still pretty. He responds “no” each time she asks. Will also refuses to sleep in the same bed with Arlene any longer and refuses to see her naked, telling her that she is ugly and no man would ever want her again. He has told the children that Arlene is no longer a woman and he doesn’t want to be married to her. There has been no physical abuse, however, Arlene’s therapist has been working with her on her self-esteem and characterizes the relationship as psychologically abusive.
appropriate inappropriate need more information
2. Janice and Robert have been married for four years. Since one month after their marriage, which occurred only three months after they met, Robert has been sexually abusing Janice. He surprises her while she’s asleep and forcibly penetrates her with a large dildo. She always tells him no and ends up crying and screaming. She usually bleeds afterwards. After repeated urinary tract infections, she finally told her doctor what was happening. Since then, two months ago, Janice has been in counseling, moved back to her parent’s home, and is continuing to work full-time. Robert frequently calls her at her parent’s home, seeking reconciliation, but she has refused to speak with him, other than to arrange the initial mediation session.
appropriate inappropriate need more information
3. Patty and Frank have been married for 25 years, have three grown children, the youngest having just graduated from college and gotten her first job. During the initial phone call, Patty reports that she can’t walk too well and asks if your office has many stairs. When you meet her, she has a noticeable limp and is using a cane. She confides that Frank pushed her down the stairs two years ago and she broke her leg in seven places. She was in a cast for months and had extensive physical therapy. She says that Frank has not harmed her since, but used to beat her frequently, especially when he was drinking. He stopped drinking after the last episode of violence. However, she believes that he may have started drinking again. She is not afraid if he isn’t drinking but believes he’s capable of killing her if he is drunk.
appropriate inappropriate need more information
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SCREENING FOR DOMESTIC VIOLENCE
4. Alex and Laura have been married for 15 years. Both are successful physicians. In the initial screening, Laura denies any history of abuse. There are two children, ages 10 and 12. Alex shows up for mediation with a black eye. He tells you that one of the kids knocked him down while they were playing touch football. You notice that he is quite nervous. At the next session, Alex has a large bandage on his hand. He tells you that he cut himself while cooking. Later that session, Alex physically pulls away when Laura starts to yell at him.
appropriate inappropriate need more information
5. Carol and Walt have two boys, ages 3 and 5. They married only one year ago, having lived together for six years. Carol, in private session, reports that Walt has been hurting her at least once a week during the entire relationship. The only reason she married him was that she lost her job and they needed health insurance for the kids. Walt told her that the only way he could get the insurance for them was if they were married. Carol is afraid to divorce Walt but doesn’t want to stay in the marriage anymore. She was recently in an abused women’s shelter but decided to go back and give it another try. Since she’s been back, the abuse has gotten worse. She knows that she’ll get beaten after they leave here today. Carol is staying with a friend but Walt knows where she is.
appropriate inappropriate need more information
6. James and Michael have lived together for 11 years. They own a business together, their own home, and all of the furniture. They have build up a solid stock portfolio together and have shared all finances for ten years, with joint checking, savings, and other accounts. Five years ago, they adopted a girl from China. Michael left recently, taking their daughter with him. He is staying with friends in a location unknown to James. Michael tells you that he left after James hit him during a fight in front of their daughter. Michael reports that there have been numerous episodes of violent fighting and she sheepishly admits that he also hit James once. However, Michael does not want his daughter exposed to violence. Previous injuries have included a fractured rib, hair torn off of his scalp, a broken finger, multiple bruises, and a sprained ankle. Michael begs you to mediate their “divorce” since the courts will be unsympathetic, slow, and could cause disastrous consequences for their child, business, etc.
appropriate inappropriate need more information
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SCREENING FOR DOMESTIC VIOLENCE
ACADEMY OF FAMILY MEDIATORS Mediation of Family Disputes Involving Domestic Violence Report of the AFT Task Force on Spousal and Child Abuse
Introduction
Family violence, which is mostly perpetrated against women, and its impact on children, continues to pose serious questions for dispute resolution professionals and the practice of mediation. Women's advocates, mediators, mental health workers, lawyers and the judiciary are increasingly working together to better understand the complex consequences of family violence. Collaboration is increasing among mediators and advocates from victim's networks.
Some critics consider divorce mediation to be inappropriate in cases where domestic violence is an issue because of the fear of retribution, the absence of trust, and the imbalance of power between the parties. They argue that mediation may not protect parties from coerced settlements and from subsequent intimidation and violence; they believe litigation is preferable to mediation in these cases.
For cases in which there is abuse, a question often asked is whether the legal process— including attest, protective orders, and litigation—is adequate to restructure a post-separation parenting relationship which will work in the best interest of all involved. This subject continues to be a topic of much debate.
These guidelines address some of the issues involved in determining which cases may be appropriate for mediation and offer recommendations regarding ways to safeguard the physical safety and legal rights of all parties.
BASIC GUIDELINES FOR MEDIATORS
. Family mediation cases in which there is or has been domestic violence are complicated and can be dangerous to the participants and the mediator. Therefore, beginning mediators and mediators not trained or experienced in domestic violence should not accept referrals of these cases but, rather, should refer them to an experienced mediator or to another appropriate resource. Another choice would be for an inexperienced mediator to co-- mediate with someone who has considerable professional experience dealing with domestic violence cases.
. If the abuse history or potential for violence is sufficient to jeopardize a party's ability to negotiate without fear or duress, the case should not be mediated.
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. There should be no mediation concerning the violence itself. For instance, an offer to stop hitting in exchange for something else should not be tolerated.
. When safety is an issue, the mediator's obligation is to provide a safe environment for cooperative problem-solving or, when this does not seem workable, to help the clients consider more appropriate alternatives.
. Above all, the mediator must promote the safety of participants in the mediation process.
SCREENING FOR DOMESTIC VIOLENCE GUIDELINES FOR ASSESSING WHETHER MEDIATION MAY BE APPROPRIATE
A. Prior to commencing mediation, screen all clients for a history of abuse to determine which cases are inappropriate for mediation, which require additional safeguards in addition to or instead of mediation, and which should be referred to other resources. 1. Conduct initial screening separately with the parties. This could be done in a variety of ways. For example, screening could take place within a brief telephone or face-to-face interview, or with a written questionnaire. Using a structured questionnaire, basic information can be gathered which includes details about any history of abuse. If screening is not done separately, a victim may be unwilling to reveal the presence of violence and/or may be placed at risk for revealing the violence. 2. Screening should continue throughout the mediation process.
B. Whether couples enter mediation voluntarily, or because it is mandated by statute or court local rule, matters of safety, free choice and informed consent require special consideration, especially in situations where domestic violence is a factor. 1. Mediators and mediation services have an ethical duty to assure that mediation occurs in a safe environment and that the process goes forward only if both parties have the ability to mediate safely, autonomously, and free from any intimidation. The parties must be capable of reaching outcomes satisfactory to both of them, voluntarily, and with informed consent. If these conditions cannot be met, mediation needs to be terminated safely and appropriately.
2. In order to assure safety and freedom from coercion, h is important that the courts not view a party's request to waive the mediation requirement as evidence of a lack of cooperation.
3. In jurisdictions in which there is mandatory mediation, it is especially important that there be separate screening. In addition, the following options should be made available: a. Separate sessions; b. the presence of a support person; c. An exemption from the mediation requirement;
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C. Clients should be strongly encouraged to consult with attorneys prior to mediation and certainly before an agreement is finalized.
D. Mediators must be knowledgeable about domestic violence. Training for mediators should include the following: 1. Issues related to physical and psychological abuse and its effect on family members; 2. The impact that family violence (including witnessing violence) has on children; 3. Effective techniques for screening, implementing safety measures and safe termination; 4. Renewal to appropriate resources, in addition to, or instead of mediation; 5. Sensitivity to cultural, racial and ethnic differences that may be relevant to domestic violence.
E. When a decision is made that mediation may proceed, mediators need to assure standards of safety, voluntariness, and fairness. When mediators have concerns, they should inform their clients that they are not neutral about safety.
SCREENING FOR DOMESTIC VIOLENCE
The following are recommended procedural guidelines:
1. Obtain training in domestic violence and become familiar with the literature;
2. Never mediate the fact of the violence;
3. Never support a couple’s trading nonviolent behavior for obedience;
4. Set ground rules to optimize the victim’s protection;
5. When appropriate and possible, arrange separate waiting areas and separate arrival and leaving times, permitting the victim to arrive last and leave first with a reasonable lag in time for safety purposes;
6. Use separate meetings throughout the mediation process when appropriate, necessary, and./or helpful;
7. Consider co-mediation with a male/female mediation team as an option;
8. Maintain a balance of power between the couple, and, if this is not possible, terminate the mediation process and refer the couple to an appropriate alternative process. Such alternatives might include shelters, therapists, abuse prevention groups, and attorneys;
9. Allow a support person to be present in the waiting room and/or mediation session;
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10. Terminate the mediation if either of the participants is unable to mediate safely, competently, and without fear of coercion. Precautions should be taken in terminating in order to assure the safety of the parties. For example, the mediator should not reveal information to one party or to the court that could create a risk for the other party;
11. Consider offering a follow up session to assess the need for a modification of the agreement;
12. Work with diverse cultural and ethnic groups serving violent families to develop appropriate and culturally sensitive options for resolving issues related to separation and divorce when domestic violence is an issue.
This report is for educational purposes only and is not intended as an AFM policy.
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ALM GL ch. 209A, § 3
ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 2002 Matthew Bender & Company, Inc., one of the LEXIS Publishing (TM) companies All rights reserved
Effective: July 01, 2002
PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE III. DOMESTIC RELATIONS CHAPTER 209A. ABUSE PREVENTION § 3. Remedies; period of relief
ALM GL ch. 209A, § 3 (2002)
§ 3. Persons suffering from Abuse; Complaint Requesting Protection From Abuse; Particular Orders and Duration of Orders; Effect of Prior or Pending Divorce Orders; Custody of Child by Abusive Parent; Visitation of Child with Abusive Parent.
A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse, including, but not limited to, the following orders:
(a) ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or minor;
(b) ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;
(c) ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling, and workplace. Notwithstanding the provisions of section thirty-four B of chapter two hundred and eight, an order to vacate shall be for a fixed period of time, not to exceed one year, at the expiration of which time the court may extend any such order upon motion of the plaintiff, with notice to the defendant, for such additional time as it deems necessary to protect the plaintiff from abuse;
(d) awarding the plaintiff temporary custody of a minor child; provided, however, that in any case brought in the probate and family court a finding by such court by a preponderance of the evidence that a pattern or serious incident of abuse, as defined in section 31A of chapter 208, toward a parent or child has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical
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custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an "abusive parent" shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.
For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child's best interests and provides for the safety and well-being of the child.
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:
(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
(b) ordering visitation supervised by an appropriate third party, visitation center or agency;
(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation;
(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;
(e) ordering the abusive parent to pay the costs of supervised visitation;
(f) prohibiting overnight visitation;
(g) requiring a bond from the abusive parent for the return and safety of the child;
(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and
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(i) imposing any other condition that is deemed necessary to provide for the safety and well- being of the child and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.
(e) ordering the defendant to pay temporary support for the plaintiff or any child in the plaintiff's custody or both, when the defendant has a legal obligation to support such a person. In determining the amount to be paid, the court shall apply the standards established in the child support guidelines. Each judgment or order of support which is issued, reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of section 12 of chapter 119A;
(f) ordering the defendant to pay the person abused monetary compensation for the losses suffered as a direct result of such abuse. Compensatory losses shall include, but not be limited to, loss of earnings or support, costs for restoring utilities, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical and moving expenses and reasonable attorney's fees;
(g) ordering information in the case record to be impounded in accordance with court rule;
(h) ordering the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or custody, unless authorized by the court;
(i) the judge may recommend to the defendant that the defendant attend a batterer's intervention program that is certified by the department of public health.
No filing fee shall be charged for the filing of the complaint. Neither the plaintiff nor the plaintiff's attorney shall be charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a result of the loss or destruction of plaintiff's copies.
Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order. When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to business, the order shall not expire until the next date that the court is open to business. The plaintiff may appear on such next court business day at the time designated by the order to request that the order be extended. The court may also extend the
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order upon motion of the plaintiff, for such additional time as it deems necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody. The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order to expire or be vacated, or for refusing to issue a new order.
The court may modify its order at any subsequent time upon motion by either party. When the plaintiff's address is inaccessible to the defendant as provided in section 8 of this chapter and the defendant has filed a motion to modify the court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court disclose any such inaccessible address.
No order under this chapter shall in any manner affect title to real property.
No court shall compel parties to mediate any aspect of their case. Although the court may refer the case to the family service office of the probation department or victim/witness advocates for information gathering purposes, the court shall not compel the parties to meet together in such information gathering sessions. A court shall not deny any complaint filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of abuse.
A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order.
Any action commenced under the provisions of this chapter shall not preclude any other civil or criminal remedies. A party filing a complaint under this chapter shall be required to disclose any prior or pending actions involving the parties for divorce, annulment, paternity, custody or support, guardianship, separate support or legal separation, or abuse prevention.
If there is a prior or pending custody support order from the probate and family court department of the trial court, an order issued in the superior, district or Boston municipal court departments of the trial court pursuant to this chapter may include any relief available pursuant to this chapter except orders for custody or support.
If the parties to a proceeding under this chapter are parties in a subsequent proceeding in the probate and family court department for divorce, annulment, paternity, custody or support, guardianship or separate support, any custody or support order or judgment issued in the subsequent proceeding shall supersede any prior custody or support order under this chapter.
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ALM GL ch. 119, § 51A
ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 2002 Matthew Bender & Company, Inc., one of the LEXIS Publishing (TM) companies All rights reserved
Effective: May 01, 2002
PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XVII. PUBLIC WELFARE CHAPTER 119. PROTECTION AND CARE OF CHILDREN, AND PROCEEDINGS AGAINST THEM [ABUSED OR NEGLECTED CHILDREN]
ALM GL ch. 119, § 51A (2002)
§ 51A. Persons Required to Report Cases of Injured, Abused, or Neglected Children; Immunity; Privilege; Penalty.
Any physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker or any person paid to care for or work with a child in any public or private facility, or home or program funded by the commonwealth or licensed pursuant to the provisions of chapter twenty-eight A, which provides day care or residential services to children or which provides the services of child care resource and referral agencies, voucher management agencies, family day care systems and child care food programs, probation officer, clerk/magistrate of the district courts, parole officer, social worker, foster parent, firefighter or policeman, licensor of the office of child care services or any successor agency, school attendance officer, allied mental health and human services professional as licensed pursuant to the provisions of section one hundred and sixty- five of chapter one hundred and twelve, drug and alcoholism counselor, psychiatrist, and clinical social worker, priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner, or person employed by a church or religious body to supervise, educate, coach, train or counsel a child on a regular basis, who, in his professional capacity shall have reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth, shall immediately report such condition to the department by oral
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communication and by making a written report within forty-eight hours after such oral communication; provided, however, that whenever such person so required to report is a member of the staff of a medical or other public or private institution, school or facility, he shall immediately either notify the department or notify the person in charge of such institution, school or facility, or that person's designated agent, whereupon such person in charge or his said agent shall then become responsible to make the report in the manner required by this section. Any such hospital personnel preparing such report, may take, or cause to be taken, photographs of the areas of trauma visible on a child who is the subject of such report without the consent of the child's parents or guardians. All such photographs or copies thereof shall be sent to the department together with such report. Any such person so required to make such oral and written reports who fails to do so shall be punished by a fine of not more than one thousand dollars. Any person who knowingly files a report of child abuse that is frivolous shall be punished by a fine of not more than one thousand dollars.
Said reports shall contain the names and addresses of the child and his parents or other person responsible for his care, if known; the child's age; the child's sex; the nature and extent of the child's injuries, abuse, maltreatment, or neglect, including any evidence of prior injuries, abuse, maltreatment, or neglect; the circumstances under which the person required to report first became aware of the child's injuries, abuse, maltreatment or neglect; whatever action, if any, was taken to treat, shelter, or otherwise assist the child; the name of the person or persons making such report; and any other information which the person reporting believes might be helpful in establishing the cause of the injuries; the identity of the person or persons responsible therefor; and such other information as shall be required by the department.
Any person required to report under this section who has reasonable cause to believe that a child has died as a result of any of the conditions listed in said paragraph shall report said death to the department and to the district attorney for the county in which such death occurred and to the medical examiners as required by section six of chapter thirty-eight. Any such person who fails to make such a report shall be punished by a fine of not more than one thousand dollars.
In addition to those persons required to report pursuant to this section, any other person may make such a report if any such person has reasonable cause to believe that a child is suffering from or has died as a result of such abuse or neglect. No person so required to report shall be liable in any civil or criminal action by reason of such report. No other person making such report shall be liable in any civil or criminal action by reason of such report if it was made in good faith; provided, however, that such person did not perpetrate or inflict said abuse or cause said neglect. Any person making such report who, in the determination of the department or the district attorney may have perpetrated or inflicted said abuse or cause said neglect, may be liable in a civil or criminal action.
No employer of those persons required to report pursuant to this section shall discharge, or in any manner discriminate or retaliate against, any person who in good faith makes such a
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report, testifies or is about to testify in any proceeding involving child abuse or neglect. Any such employer who discharges, discriminates or retaliates against such a person shall be liable to such person for treble damages, costs and attorney's fees.
Within sixty days of the receipt of a report by the department from any person required to report, the department shall notify such person, in writing, of its determination of the nature, extent and cause or causes of the injuries to the child, and the social services that the department intends to provide to the child or his family.
Any privilege established by sections one hundred and thirty-five A and one hundred and thirty- five B of chapter one hundred and twelve or by section sections 20A and 20B of chapter two hundred and thirty-three, relating to confidential communications shall not prohibit the filing of a report pursuant to the provisions of this section or the provisions of section twenty-four.
Notwithstanding section 20A of chapter 233, a priest, rabbi, clergy member, ordained or licensed minister, leader of a church or religious body or accredited Christian Science practitioner shall report all cases of abuse under this section, but need not report information solely gained in a confession or similarly confidential communication in other religious faiths. Nothing in the general laws shall modify or limit the duty of a priest, rabbi, clergy member, ordained or licensed minister, leader of a church or religious body or accredited Christian Science practitioner to report a reasonable cause that a child is being injured as set forth in this section when the priest, rabbi, clergy member, ordained or licensed minister, leader of a church or religious body or accredited Christian Science practitioner is acting in some other capacity that would otherwise make him a reporter.
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Massachusetts Bar Association - Opinion No. 85-3
Summary: An attorney may, in certain circumstances outlined, act as a single mediator or as a co-mediator with a lay family counselor in divorce mediation, provided that the attorney takes certain precautionary steps, including explaining to the parties that the attorney is not representing either party, explaining the risks of proceeding without independent legal counsel and obtaining the informed consent of each party.
An attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation.
The attorney may associate with a non-lawyer mediator provided that the services provided by each of them are properly identified and attributed, clients are separately billed for services, and clients are not mislead as to the identity, responsibility and status of the participants.
Facts: An attorney advises that he wishes to engage in providing mediation services with a family counselor associate. He asks if it is proper for the attorney either as single or co- mediator to draft a separation agreement for the mediating parties. He also asks whether he may engage in advertising that identifies him as an attorney, which is undertaken jointly with his non-lawyer associate, and whether use of a trade name would be permitted. Finally, he asks whether payments from the participants in mediation may be divided with the co-mediator.
Discussion: We are asked to address a number of issues relating to professional responsibility problems that arise for lawyers in the context of their involvement in various kinds of divorce mediation. The increasing interest in divorce mediation has been spurred by concern for more efficient, less adversarial, and less costly mechanisms for divorce. At the same time, questions have been raised about the need for lawyers participation in such proceedings by reason of the inherently adversary quality of our present system of divorce, since it it generally results from conflict between the parties and involves a distribution of assets in a setting where whatever is given to one party is taken from the other. These problems are exacerbated by the fact that there are no widely accepted screening devices to help couples decide whether mediation is advisable for them. In addition, there is no standard way to conduct divorce mediation. Indeed, lawyers who participate in divorce mediation play a variety of roles, each of which raises different problems of professional responsibility. It is useful to describe the different models of divorce mediation that involve the participation of lawyers in order to provide some background for consideration of the issues and make clear what issues we are and are not addressing.
A. The Single-Lawyer Mediator. In this model, the attorney acts as sole mediator, undertaking to direct or to facilitate the parties' efforts to discuss, negotiate and compromise the emotional, financial and child-related issues that may be involved. The attorney's task is likely
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to involve explaining to the parties existing statutory and decisional law relative to divorce, advising each of them concerning probable outcomes in the event they litigate rather than mediate. The parties may or may not request the attorney to draft a separation agreement embodying the terms of any agreement reached in mediation.
B. The Lawyer Co-Mediator. A second mediation model involves the participation of a team of persons (generally, two) who mediate jointly. This model includes situations in which both mediators attempt to facilitate the resolution of all issues, as well as situations in which each mediator takes responsibility for attempting to resolve some but not all issues. It is most common for one mediator to be an attorney and the other, a mental health professional. Any blending by the attorney co-mediator of the new role of facilitator with the performance of any of the more traditional representative lawyering functions will raise the same, as well as other, issues of professional responsibility as are raised by the single-lawyer mediator model.
C. The Lawyer-Advocate. A third mediation model involves a situation where each of the parties will hire his or her own attorney, who will then function largely, if not fully, in a traditional representative manner. The participation of a more or less traditional lawyer-advocate may take place from the inception of mediation, or even prior to it. Indeed, the lawyer-advocate participant may even initiate the mediation process by suggesting to his or her client that the matter might lend itself to this alternative method of resolution. In the mediation that follows, the lawyer-advocate may stay outside the negotiating process entirely, may participate only from the sidelines (i.e., not during the actual mediation sessions), may participate with the mediator and with the lawyer-advocate for the other party (such sessions may include the parties themselves or, analogously to labor mediation, may involve only the mediator and both attorneys), or may negotiate or even litigate stipulated issues excluded from or unresolved by the mediation.
Finally, the lawyer-advocate participant may be brought in at any stage in the mediation process, in the event, for example, that the mediator wishes to shore up the process to equalize an unequal bargaining situation or, for another example, to effectuate the transition to an adversary proceeding if the mediation is headed for failure.
While the lawyer-advocate's role may be defined more narrowly than in a non-mediated divorce case, this third model does not otherwise involve any basic departure from the activities and attitudes embodied in the conventional lawyer-client relationship and does not, therefore, present special problems.
D. The Single-Lawyer Advisor. This fourth model involves the performance by an attorney of certain functions within the mediation process on behalf of both parties. The attorney may be selected by the parties or by the mediators. In fact, the most widely known booklength work in the divorce mediation field proposes that the mediation team should consist of a non-lawyer mediator who utilizes an attorney, chosen from a panel of attorneys who have undertaken some training in this method, to advise both clients on the procedural and substantive law of divorce and to draft the separation agreement that will contain the terms on which the parties
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have reached agreement through mediation. Coogler, Structured Mediation in Divorce Settlement.
The inquirer in this instance proposes to function as a single mediator or co-mediator, and therefore we address here only the professional responsibility issues raised by these models, separating the mediation services from those involved in drafting a separation agreement. We have not been asked and do not reach in this opinion the question of representation of the parties in subsequent stages of the proceedings.
Mediation Services: Earlier ethical opinions that have considered these issues analyzed the attorney's role as mediator as involving the attorney in representation of multiple clients, literally applied DR 5-105, which deals with representation of multiple clients, to the attorney as mediator, and tended to conclude that the conflicts inherent in matrimonial proceedings made such representation impossible in most cases. See opinions cited in Silberman, Professional Responsibility Problems of Divorce Mediation, 16 Fam. L.Q. 107, 113-15 (1982). Other analyses have attempted to reconcile DR 5-105 with the code's recognition in EC 5-20 that attorneys may serve "as impartial arbitrators or mediators" and with the legitimate desire to accommodate the right of parties interested in this form of resolution of issues to have the benefit of an attorney's impartial services. E.g. Boston Bar Opinion No. 78-1 (1978); New York City Bar Association Committee on Professional and Judicial Ethics No. 80-23 (1981); District of Columbia Bar Opinion No. 143 (1984).1
We do not view the attorney who acts solely as a mediator as representing either party in the sense that traditional adversarial concepts of "adequate representation" should govern. The role of the mediator is not a representational one vis-a-vis the parties but one of an intermediary, representing neither party and remaining impartial in an effort to help the parties resolve outstanding issues for themselves.
Certainly, to the extent that the attorney provides the mediating parties with information as to the legal consequences of various courses of action and draws upon his legal knowledge in identifying the issues to be resolved, he is using his legal skills. Presumably parties who seek an attorney as mediator as opposed to a lay counselor with expertise in other areas such as mental health do so in order to benefit from the attorney's training and skills. However, his assistance is not being rendered in a traditional attorney-client, representational relationship.
We agree with the views well expressed by the Committee on Professional and Judicial Ethics of the Bar Association of the City of New York, in its Opinion No. 80-23, that although the code should not read so as to bar divorce mediation by attorneys, caution must be taken to assure that the parties involved understand the attorney's limited role and the risks involved. As the committee has pointed out, there may be some circumstances in which a truly informed consent to the attorney's limited, non-representation role is not possible:
[I]n some circumstances, the complex and conflicting interests involved in a particular matrimonial dispute, the difficult legal issues involved, the subtle legal ramifications of
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particular resolutions, and the inequality in bargaining power resulting from differences in the personalities or sophistication of the parties make it virtually impossible to achieve a just result free from later recriminations of bias or malpractice, unless both parties are represented by separate counsel. In the latter circumstances, informing the parties that the lawyer "represents" neither party and obtaining their consent, even after a full explanation of the risks, may not be meaningful; the distinction between representing both parties and not representing either, in such circumstances may be illusionary. Whether characterized as a mediator or impartial advisor, the lawyer asked to exercise his or her professional judgment will be relied upon by parties who may lack sophistication to recognize the significance of the legal issues involved and the impact they have on their individual interests. Further, the "impartial" lawyer may in fact be making difficult choices between the interest of the parties in giving legal advice or in drafting provisions of a written agreement which purports merely to embody the parties' prior agreement. Although the parties may consent to the procedure, one or both may not be capable of giving truly informed consent due to the difficulty of the issue involved. In such circumstance, a party who is later advised that its interests were prejudiced in mediation or that the impartial advice offered or written agreement drawn, by the lawyer-mediator, favored the other spouse is likely to believe that it was misled into reliance on the impartiality of the lawyer-mediator. In short, we believe there are some activities and some circumstances in which a lawyer cannot undertake to compose the differences of parties to a divorce proceeding without running afoul of the strictures and policies of DR 5-105--even if the lawyer disclaims representing the interests of any party, purports to be acting impartially and obtains the consent of the parties to the arrangement.
We do not believe that the requirement in DR 5-105(C) that an attorney may represent multiple clients only where it is "obvious" that he can "adequately represent" the interests of each party should be applied to prevent an attorney, with the informed consent of the parties involved, from performing in a non-representational role as a mediator. On the other hand, the policies behind DR 5-105 -- (1) assuring that the parties are fully informed and consent to limitations on the attorney's role, and (2) preventing the attorney, despite consent, from undertaking a limited role where to do so would be inappropriate to the matter or unfair to the parties -- should continue to govern the attorney who provides non-traditional mediation services.
Drafting a Separation Agreement: The drafting of a separation agreement which is the product of mediation involves the attorney in more of a traditional dual representational role. In drafting a contract, the attorney is generally faced with choices in language, choices concerning the allocation of the risk of non-performance, etc., which will generally advantage one party's interests as against the other. While it may be the case that the mediation process was so thorough and the agreement reached so uncomplicated that the drafter's efforts are truly those of a mere "scrivener or secretary," see Maryland Bar Association Opinion 80-55A (1980), this will not usually be the case. The committee views such activity as invoking the dual representation provisions of DR 5-105, so that in each instance the attorney must, at the time he or she undertakes the drafting process, obtain the informed consent of both parties, and the attorney must satisfy himself that the "obviousness" test of DR 5-105(C) has been met --
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namely, that the parties' interests, analyzed in light of the extent of their prior agreement on the terms of the separation agreement and against the perspective on informed consent discussed above, can be adequately represented. If there is participation by independent counsel, the degree of such participation will be a factor in determining whether the DR 5- 105(C) conditions are met.
General Guidelines: We believe that lawyers should consider the following guidelines in entering into any of the roles presented by the inquiry:
(1) Because many lawyer-activities within the mediation context differ to varying extents from the traditional advocacy-based role that is familiar to the public, the lawyer-participant should discuss with the parties the difference between the contemplated role and traditional advocacy-based lawyering, including that the parties are not being represented by the attorney. The lawyer should also discuss the potential risks to the protection of each party's interests of proceeding without independent legal counsel, as well as the advantages that may inhere in the proposed mediation process and his or her role therein. In short, the lawyer should attempt to provide the parties to the mediation with the fullest feasible understanding of the process and then obtain their informed consents to the chosen mediation model and to the lawyer's role within it.
(2) Lawyers should also advise the parties to mediation that, because the attorney as mediator is not representing them, their communications will not be protected by privilege unless and until a mediator's privilege is enacted. If the attorney undertakes representation of the parties through the drafting of a separation agreement, he should advise the parties that the attorney- client privilege will apply, although there will be no confidentiality for communications between each of them and the attorney vis-a-vis the other party.
(3) Where the issues are too complex, or other factors make it unlikely that the parties' consent could be effectively given to the mediation activity, the attorney should decline to undertake the mediation services.
(4) In the event the lawyer chooses to undertake functions traditionally rooted in the adversary process, such as the drafting of separation agreements for both parties, he or she should at that time provide full disclosure of the costs and risks that may emanate from single-lawyer representation in the performance of such tasks, as well as the costs and risks of traditional alternative procedures, and should obtain the clients' informed consents to the chosen procedure. This explanation should include the advantages of having the participation of independent legal counsel, assuming that there has been none up to this point. The lawyer should undertake such a function only in situations where the "obviousness" test of DR 5- 105(C) has been met.
(5) Finally, noting the possibility that in many cases the lawyer may start as mediator representing no one and end up representing both parties in drafting a separation agreement, the lawyer should at the outset explain the various alternatives and changes in his role,
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including the possibility that he or some other lawyer might draft the separation agreement. Moreover, since this whole process is a relatively new one, the lawyer should explain the various possible judicial reactions to the procedure, including the possibility that a court would consider the lack of separate representation in deciding whether to enforce the agreement.
(6) The attorney should advise the parties that he will not represent either party against the other in any future contested proceedings.
Participation with Non-Attorneys: The second part of the attorney's inquiry concerns the ways in which the attorney can ethically collaborate with a non-attorney in the advertising and operation of a mediation service. The attorney wishes to know if he may advertise as an attorney, advertise jointly with a family counselor co-mediator, use a trade name, and finally, divide mediation fees with the co-mediator. The inquiry states that the proposed business arrangements would not involve a partnership between the attorney and the counselor.
An attorney may certainly identify himself as such through the use of such a term as "Esq." where the designation is relevant to the attorney's activities. Since the committee views the mediator role, when undertaken by an attorney, as involving use of the attorney's legal training and skills, such advertising is permissible.
Attorneys may not enter into a partnership with non-lawyers if any of the partnership activities consist of the practice of law. DR 3-103(A). See also DR 5-107(C) on professional corporations and associations. Our jurisdiction as a committee does not extend to questions of unauthorized practice of law. Since the inquiry here does not contemplate the establishment of a partnership, we assume that there will be no formal partnership and that the parties will take steps to avoid structuring their relationship in any way which would result in their being held to have operated as a partnership. In light of this, we address the remaining questions.
All advertising and other public communications engaged in by an attorney must be free of deceptive statements or claims. DR 2-101(A). Letterheads are similarly constrained. DR 2- 102(A). The danger in shared letterhead or team advertising is that it may be deceptive if it suggests the existence of a partnership or associational relationship where there is, in fact, none. Advertising and public communications of the type the attorney proposes must, therefore, take care to clarify the lack of any partnership relationship between the participants in such joint communications. The use of a trade name such as "City Mediation Services" would raise similar concerns in terms of the potential for deception.
Under DR 3-102, a lawyer may not share "legal fees" with a non-lawyer. Without relying on the technical question of whether a fee for mediation services conducted by an attorney is a "legal fee," this rule serves an important function in preventing deception of the consumer. The inquiry does not make it clear whether the fee division is to be made as a business profit- sharing, which would probably run afoul of DR 3-102, or whether what is contemplated is the division of a total fee between the co-mediators based on the services rendered by each. We believe the better practice would be to separately charge the participants for the respective
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services of the lawyer and non-lawyer mediator.
In the committee's view, avoiding the potential for deception depends upon accurately providing information concerning the mediation team members and their relationships. The choice of any term, such as "consultant" or "associate" to describe the relationship between the attorney and non-attorney, should therefore be accurate and avoid possible confusion of the parties as to the nature and source of the services rendered.
Permission to publish granted by the Board of Delegates on June 27, 1985.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
1. We note also the adoption by the American Bar Association of Standards of Practice for Lawyer Mediators in Family Disputes. See 18 Fam. L.Q. 363 (1984).
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UNAUTHORIZED PRACTICE OF LAW A Well-Founded Fear of Prosecution: Mediation and the Unauthorized Practice of Law By David A. Hoffman and Natasha A. Affolder
To many mediators, "UPL" is an acronym with an increasingly ominous ring.
This growing concern about the unauthorized practice of law (UPL) arises from reports around the country of charges filed against mediators who are not lawyers. These prosecutions-or in some cases warnings-are primarily directed at divorce mediators as a result of their drafting of detailed marital settlement agreements. However, all mediators have reason to be concerned, because of uncertainties about what constitutes UPL in the context of mediation.
The legal standards governing UPL enforcement are highly indefinite, and vary by state. The patterns of enforcement are also unpredictable, and disclaimers in mediation agreements may not be legally effective. Yet the stakes are high, as the potential consequences for a mediator of being found to engage in the unauthorized practice of law range from civil and criminal liability to ethics charges. This article surveys today’s terrain, and argues that it’s time for new, clear and uniform standards for distinguishing between mediation and the practice of law.
Statutes, interpretations
There are two main reasons for UPL statutes. One is consumer protection-i.e., to ensure the competence and integrity of people who practice law, and to make sure that people who are seeking out legal services have the protection of the attorney-client privilege. The other reason, which attorneys may be more reluctant to admit, is that UPL statutes enable lawyers to maintain a monopoly over certain services. This means that prices can be maintained and competition limited.
UPL prohibitions are enforced by state and local agencies, such as the state Attorney General’s office, the district attorney’s office, and state bar UPL committees. UPL prosecutions tend to target law-related activities such as the work of accountants, real estate brokers, workers’ compensation specialists, eviction service professionals, title companies and the makers of "do- it-yourself" divorce kits. In several states, mediators have also become targets.
The courts have developed five tests to distinguish the practice of law from other activities, a fact that itself underscores the difficulty in defining UPL. As applied to mediation, these tests are:
1. The ‘Commonly Understood’ Test. This broad test poses the question of whether mediation is commonly understood to be a part of the practice of law in the community.
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Factors that would inform this determination might include, for example, the extent to which lawyers in a given community, as opposed to non-lawyers, routinely provide mediation services.
2. The ‘Client Reliance’ Test. This test asks whether the parties who use a mediator believe they are receiving legal services. Evidence of what services the parties think they may be getting can sometimes be found in the advertising materials of the mediator, or in a written agreement to participate in mediation. Under this test, whether the mediator is engaging in legal practice could be different in every case, depending on the perspectives of the individual parties.
3. The ‘Relating Law to Specific Facts’ Test. This test asks whether the mediator is engaged in activities "relating the law to specific facts" -- in essence, whether the mediation is an evaluative process. Prof. Carrie Menkel-Meadow, for example, argues that when a mediator evaluates the strengths and weaknesses of the parties’ case by applying legal principles to a specific fact situation, he or she is engaged in the practice of law.
4. The ‘Affecting Legal Rights’ Test. This test defines the practice of law as those activities affecting a person’s legal rights -- an extremely broad test. Mediations involving litigation matters by definition involve the parties’ legal rights. Even in non-litigation matters (such as neighborhood, family, or organizational disputes), however, a mediation can affect the parties’ legal rights if the mediation results in a legally enforceable settlement agreement.
5. The ‘Attorney-Client Relationship’ Test. This test asks whether the relationship between the mediator and the parties is tantamount to an attorney-client relationship. One factor affecting this determination in the context of mediation might be whether the parties in the mediation were represented by counsel -- either at the negotiating table with the mediator and the parties, or in close consultation with the parties during the mediation but not actually attending mediation sessions. If not, there is greater risk in some situations that the parties could view the mediator as performing the role of attorney.
How useful are these tests? At a minimum, they underscore the point that there is no fixed definition of the practice of law in the context of mediation or otherwise. Moreover, courts are often also interested in matters that are significant but not mentioned in these tests -- particularly the question of money. Some courts and advisory bodies have thus found that the issue of whether an individual is paid is important in defining an activity as the practice of law.
Two states set standards
At least two states-Virginia and North Carolina-have developed UPL standards specifically applicable to mediation. Rather than rely on any of the five tests described above, drafters in those two states identified the most common categories of mediator activities that could be
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considered the practice of law: providing legal advice to the parties, and drafting settlement agreements in a manner that goes beyond serving as a scrivener for the parties.
Legal advice. The Virginia Guidelines on Mediation and the Unauthorized Practice of Law, drafted by the Department of Dispute Resolution Services of the Supreme Court of Virginia, attempt to draw a line between providing legal information (which is not legal practice) and giving legal advice (which is).
Legal advice is defined in the Virginia Guidelines as applying legal principles to facts in such a way as to (1) predict a specific outcome of a legal issue or (2) direct, urge, or recommend a course of action by a disputant. Under these Guidelines, mediators can provide disputants with copies of relevant statutes or court cases, and they may state what they believe the law to be on a given legal topic, without being deemed to be practicing law. However, the Virginia Guidelines prohibit a mediator from describing the application of the law to the parties’ situation. They offer the following two statements as examples; the former would be permissible while the latter would not: "Generally speaking, a contract for the lease of goods that exceeds $1,000 must be in writing to be enforceable. Since your agreement was in writing, you would have no problem getting a court to enforce it."
The North Carolina Guidelines for the Ethical Practice of Mediation and to Prevent the Unauthorized Practice of Law, adopted by the North Carolina Bar in 1999, likewise permit mediators to provide "legal information," but prohibit mediators from advising or giving an "opinion upon the legal rights of any person, firm or corporation." Legal information may include printed material, such as brochures prepared by the bar association; presumably, providing copies of statutes, cases, or rules would fall within this category. But, in the words of the North Carolina Guidelines, "there are no bright lines."
Settlement agreements. With respect to the drafting of settlement agreements for the parties, the Virginia Guidelines recommend that mediators serve simply as scriveners, using only those terms that the parties specifically request and avoiding legal "boilerplate."
The North Carolina Guidelines include, primarily for the benefit of non-attorney mediators, samples of recommended language for an agreement to mediate and a memorandum of understanding. The North Carolina Guidelines state that mediators "should not sign or initial" a memorandum of understanding, and if they do, they "shall advise the parties in writing that the signature does not constitute an opinion regarding the content or legal effect of any such document."
From the Guidelines formulated in Virginia and North Carolina, and the five tests discussed above, one can see that the biggest risk areas for mediators who are not lawyers, are activities that involve (a) applying legal norms to specific sets of facts, and (b) drafting documents that may be legally binding.
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A good start, but...
The Virginia and North Carolina Guidelines are among the first attempts to articulate a UPL standard applicable specifically to mediators. The Virginia Guidelines offer a particularly thoughtful and detailed analysis of UPL issues, and advance the discussion of these issues by including examples of permissible and impermissible actions by mediators.
The distinction drawn in both sets of Guidelines between "legal information" and "legal advice" is a familiar dividing line between permissible and impermissible practice from the standpoint of mediator ethics. One should not underestimate, however, the difficulty of enforcing a standard based on this distinction. Consider, for example, whether the following hypothetical statements made by a mediator constitute legal advice by "predicting a specific outcome of a legal issue."
(a) "I think the plaintiff has a better liability case than you [the defendant] do."
(b) "The plaintiff seems to have a better liability case than you do."
(c) "The plaintiff may have a better liability case than you do."
(d) "I can see how a jury might think the plaintiff has a better liability case than you do."
(e) "Do you really think you have a better liability case than the plaintiff?"
Statements (a) and (b) seem to cross the line; many would say the (d) and (e) do not. Is (c) UPL? Enforcing a standard based on a prohibition against "directing, urging, or recommending a course of action by a disputant" is equally difficult. Consider the following hypothetical statements by a mediator to a party in a private session:
(a) "I think your interests would be well served by this proposal.
(b) "I think you should strongly consider this proposal."
(c) "This proposal could turn out to be a good thing for you."
(d) "I can see how this proposal might be better than going to trial."
(e) "Do you really think you will do better than this at trial?"
Again, statements (a) and (b) seem to cross the line, and many would say (d) and (e) do not. Is (c) UPL?
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With respect to settlement agreements, both the Virginia and North Carolina Guidelines set boundaries for mediators that may be difficult, in practice, to enforce. In the subtle and complex interactions of parties and mediator while they are creating a memorandum of agreement, it will often be difficult to discern whether the mediator’s involvement has altered or enhanced the parties’ own language.
In short, there is an unavoidable measure of uncertainty in the various definitions of UPL, and for regulators an irreducible measure of discretion that must be employed when applying these definitions.
New approach needed
Uniformity from state to state would advance the process of drawing clear lines between mediation and the practice of law. The efforts currently under way to draft a Uniform Mediation Act could provide an opportunity for greater uniformity if the statute addresses this issue.
However, there is widespread disagreement about how mediation should be defined, and this disagreement stands in the way of consensus on the boundary between mediation and UPL. For example, for those mediators who believe that providing the parties with "reality testing" and other kinds of evaluative feedback is not only permissible but often an essential part of the mediation process, the Virginia and North Carolina Guidelines are anathema. These mediators, many of whom mediate disputes in which lawyers (and litigation) are involved, believe they are not practicing law and that there is no risk of role confusion -- and therefore no reason to describe their work as UPL -- because the parties and their lawyers are sophisticated participants in the process. For other mediators, however, any form of evaluation is anathema, because mediation (in their view) should be solely facilitative. These mediators, many (but not all) of whom practice in a community setting, believe that any definition of the line between mediation and UPL which permits evaluation and agreement-drafting by mediators fundamentally misconstrues the mediation process and debases it.
Yet another group of mediators believes that mediation can be practiced in many ways -- including evaluative forms of mediation -- but are nervous about non-lawyers providing case evaluation and agreement-drafting services. For these mediators, a primary concern is protection of the public from people who are unqualified to provide such services.
Integrating competing viewpoints Integrating these points of view is no mean feat. One way to begin seeking such an integration is to focus separately, as the Virginia and North Carolina Guidelines do, on (a) the drafting of settlement agreements, and (b) providing legal advice, because these are the two primary areas of concern with respect to UPL.
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In our view it makes sense to treat agreement-drafting quite differently from other kinds of mediator behavior for purposes of UPL enforcement. It is difficult to view the drafting of settlement agreements by mediators -- particularly detailed marital settlement agreements that go far beyond the words of the parties themselves -- as something other than the practice of law.
Restricting such activities to lawyers does not impair the ability of mediators to assist the parties in reaching agreement, because the parties can either hire counsel to draft the agreement, or rely on the mediator to help them develop a simpler memorandum of understanding using their own language, or, in a litigated matter, ask the court to enter the terms of a memorandum of understanding as a court order. This approach is consistent with that of several ethical opinions from bar associations, which define the drafting of settlement agreements by mediators as the practice of law and provide guidance for the drafting of such agreements by lawyer-mediators.
UPL enforcement: a disturbingly blunt instrument With respect to providing legal "advice," however, it seems appropriate to create a broad zone of protection from UPL enforcement for mediators. The reason for this is two-fold. First, it is virtually impossible to draw a sensible -- i.e., defensible -- line on the spectrum described above between reality testing and evaluating the parties’ claims and contentions. Second, unlike the words of a settlement agreement, which define the rights and obligations of the parties, a mediator’s evaluative feedback about a claim or contention -- or even a mediator’s recommendation -- leaves the parties in control of the decision whether to create enforceable rights or obligations.
To be sure, mediators can go overboard. Providing evaluative feedback or recommending that the parties consider a particular proposal or course or action can become so directive as to impair that party’s self-determination -- an essential element in the mediation process. However, given the subtlety of such a determination, and the many principles of mediation ethics that intersect in such a determination (e.g., informed consent, voluntariness, and confidentiality), UPL enforcement is a disturbingly blunt instrument with which to enforce the practice standards of the mediation field. In other words, so long as the mediator’s so-called "advice" arises in the context of his or her serving as an intermediary, assisting in the negotiation of a dispute, and providing feedback to the parties about their case solely as a function of that intermediary role, these activities should not be considered UPL. Accordingly, it may be appropriate for UPL enforcers to cede entirely to those responsible for promulgating and enforcing mediation ethics the job of deciding when, if ever, mediators should be sanctioned for crossing the line from facilitative to evaluative forms of mediation. Such a division of labor would leave the wide range of activities engaged in by mediators -- whether they are facilitative, evaluative, or transformative in their orientation -- entirely outside the scope of UPL enforcement.
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Relying on mediation ethics Currently, many if not most codes of mediation ethics prohibit mediators from providing professional advice or services (such as law or psychotherapy) in the context of mediation. However, the very definition of "professional advice" or "professional services" arises from a relationship far different from the relationship between the mediator and the parties. Existing codes of ethics for mediators also emphasize the role of "competence," and therefore one might reasonably expect the enforcement of these codes, with respect to a mediator’s evaluative interventions, to take into account whether the mediator is qualified by training or experience to provide such interventions. The principle of "self-determination" might also be interpreted in such a way as to bar the use of evaluative feedback except in those instances where the parties request it.
In any event, the job of making these difficult determinations, which implicate passionately debated principles of mediation ethics and practice, should be in the hands of mediators not prosecutors. Of course it may be politically naive to think that UPL regulators and those responsible for bar discipline will permit non-lawyer mediators to provide case evaluations simply because they call it mediation. However, the alternative -- continuing to permit these issues to be resolved by governmental agencies with little experience or understanding of mediation -- is an unappealing prospect.
A "hands off" approach to mediation by UPL and bar regulators might be more acceptable to them if there were some form of regulation of mediation. Certification and other types of formal regulation of mediation is a topic that lies outside the scope of this article. Suffice it to say, however, that there is a wide range of views among mediators about the desirability of such regulation. One factor to consider as regulation is debated is whether it might enable mediators to prevent regulation by those outside the field of mediation, such as those who enforce UPL statutes.
Conclusion: Need for greater clarity about UPL Clear standards and uniform laws, while desirable, are not a cure-all. Applying those standards in a manner that is sensitive to the nuances of mediation practice will be difficult. And any regulation of the practice of mediation -- a confidential process -- poses the same risks that exist in the regulation of law, medicine, psychotherapy and other occupations where confidentiality is closely guarded. Yet however difficult the job of setting and enforcing standards may be, the field of mediation needs greater clarity with respect to this issue, so that mediators -- regardless of whether they are lawyers or not -- can perform their useful work without having to wonder, at each step of the way, whether they should be looking over their shoulders.
Email David A. Hoffman: [email protected] or Email Natasha A. Affolder: [email protected] Published on Mediate.com. Used with permission.
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ETHICS AND PROFESSIONAL RESPONSIBILITY IN DIVORCE AND FAMILY MEDIATION
1. Janice and Tom are divorcing after 14 years of marriage. During the mediation session, you discover that you dated Tom’s brother approximately 16 years ago. In fact, you had met Tom several times but his appearance has changed over the years. Your relationship with Tom’s brother did not end amicably.
2. You billed Eileen and Elliott for mediation services at ten hours of mediation at your hourly rate of $350 and your standard fee of $400 for preparing a Memorandum of Understanding. You receive a call from Eileen who is very upset about the additional $400 for the preparation of the MOU. You generally send a detailed fee schedule to the parties in advance and review the fees at the initial consultation session. However, you were between secretaries at the time that Elliott and Eileen came to you and you may have neglected to provide a written fee schedule. You have no actual memory of the fee discussion at the initial consultation. Eileen is not questioning your hourly fee.
3. James and Deborah are involved in a heated custody battle over their two children. You have agreed to mediate the case on the referral of a judge from whom you receive a number of cases. During the mediation, you come to believe that James is an unfit parent and should not have custody. Following the termination of mediation, without an agreement, the judge calls you and asks your opinion of who should get custody.
4. You practice as a lawyer in a small town and have provided services to Kate and Sam on various occasions, including the drafting of their wills and the establishment of a trust fund for their children. They have now approached you asking that you help them get an amicable divorce. Kate tells you that she and Sam decided to use you as their mediator and Sam will also get a lawyer to review any documents that are prepared. Kate wants to rely on you for your advice in the process.
5. Joe and Anita are arguing over the division of the household items. The biggest issue in contention at this point is the kitchenware, including the pots and pans, china and small appliances that were given to them at the time they married. Anita claims that it’s important for her to have these since she’s the one who does all the cooking and that they were wedding presents from her parents. Joe believes he should have these items because his new girlfriend, with whom he is now living, cooks and wants them. You find yourself getting very angry with Joe and believing that Anita is right in this matter. In fact, you dislike Joe more and more as the mediation progresses.
6. Alan and Susan have requested that you mediate their separation. You received this referral from a psychologist with whom you are in partnership. The psychologist has been providing marital counseling. You and the psychologist have a referral fee arrangement for each case referred. For example, if the psychologist refers a case to you, you pay a referral fee to the psychologist, and vice versa.
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PATERNITY FACTS
What is Paternity? Paternity is the legal identification of the father of a child. Once paternity is established, the acknowledged father will gain legal rights to his child.
What does “Establishing Paternity” mean? Establishing paternity means giving legal status to, and naming, a person as the legal father of a child. When a child is born to parents who are not married to each other, the mother is the only legal parent the child has until paternity is established.
What are the benefits of establishing paternity? Social Security - The child may be eligible for benefits if the father becomes disabled or dies. Benefits may continue until the child is eighteen.
Military Benefits - The father may draw an extra allowance to provide a household for his dependents. The child may also be eligible for commissary privileges. If the father should incur a service related disability, the child may be eligible for benefits.
Health Care - A father’s health care plan may also be available to the child.
Child Support - Before a court order for child support can be entered, paternity must be adjudicated. Support payments may grow as the father’s future earning increase.
Inheritance - A child may gain the right to share in the property of his/her father’s estate.
Life Insurance - When paternity is adjudicated, the child may become eligible for life insurance benefits of his/her father.
Medical History - Important medical and genetic information may lead to a happier and healthier life for the child.
Other Benefits - When paternity is adjudicated, the child gains most of the rights and privileges that a child born within a marriage has. More importantly, the child has a right to know both parents. Children have the right to have the sense of belonging that comes from the love, care, and support of both parents.
How is Paternity established? Paternity can be established either by signing a paternity acknowledgement form or by asking the court to establish paternity through DNA testing. In Massachusetts DNA is done by a “buccal swab” test. A swab is rubbed on the cheeks inside the mouth of the child, mother and presumed father.
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Journal of Andrology, Vol. 25, No. 6, November/December 2004 Copyright - American Society of Andrology
Who’s Your Daddy? Bioethics and Law Forum*
By SUSAN KERR BERNAL From North Wales, Pennsylvania.
When paternity cases make the headlines, they are either about identified deadbeat dads who egregiously fail to pay child support or famous actors, basketball players, football players, or rock stars being sued by a woman alleging he fathered her child. Increasingly, however, cases dubbed ‘‘paternity fraud’’ are garnering newsworthy attention.
Paternity fraud can stem from a variety of circumstances, but ultimately, they all culminate in a man who is not a child’s biological father being declared so by a court and thus becoming required by law to pay child support.
Sometimes paternity fraud cases germinate from an intentional action by a mother who is seeking revenge against a certain man, or who believes man ‘‘X’’ is better able to pay child support than the child’s actual biological father, or who is trying to hide an extramarital affair. The fraud might also be more a result of apathy than intention when a woman is confused or makes little effort to determine the true identity of a child’s biological father. The fault for paternity fraud could even fall partially on the shoulders of the man if he ignores a complaint to appear in court to defend himself and is declared the father by a default judgment. Finally, the fraud might be an unintended consequence of long-standing state laws that decree a presumption of paternity to a husband if a child is born during or soon after the breakup of a marriage.1 This presumption, which has survived for more than 5 centuries, was crafted to preserve families and protect children who might otherwise be considered ‘‘bastards’’ or ‘‘illegitimates’’ and, as a result, have little entitlement or redress under the law. Quaint and antiquated, these laws and views are simply irrelevant in light of today’s DNA technology.
For almost 2 decades now, courts have accepted DNA technology to identify deceased’s remains, as well as killers, rapists, and other criminals. More recently, the technology has been used to free innocent persons from jail, some even on death row. So why isn’t the technology being used to free men from the burden of paying child support for children they did not father and, therefore, should not be responsible for? Sadly, it is mostly about the money.
States receive approximately $18 billion in federal monies to help cover some 20 million children in family assistance programs. In order to get federal funds, states have to identify the fathers of children whose mothers receive these government benefits. If men are able to disprove their paternity through DNA tests and the states cannot locate the actual biological fathers, states will not receive federal dollars; rather, state welfare agencies will get the bill for family assistance benefits.
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The second reason for reticence toward prolific DNA paternity testing is the ‘‘best interest of the child’’ standard. Most laws concerning children attempt to put the best interest of the child at the pinnacle of its priorities.
Although an admirable and defendable standard, when applied to paternity fraud cases, it translates into forcing nonbiological fathers to continue support payments rather than taking money away from the child or finding his or her actual biological parent. Denying children the child support money they deserve is not the goal of correcting and clarifying so-called paternity fraud cases. Rather, the goal is to alleviate unethical legal penalties and to hold the correct individuals responsible. If the best interest of the child is of paramount concern, should not the truth be a guiding force and cannot a solution be found that ceases to encourage deceit, fraud, irresponsibility, and legal loopholes?
As fathers continue to speak out, some laws are changing. In Alabama, Arkansas, Georgia, Iowa, Ohio, and Virginia, a DNA test can be used to exonerate ex-husbands and out-of-wedlock fathers from support payments. Colorado, Illinois, and Louisiana grant such an entitlement only to ex-husbands. Texas allows an ex-husband 4 years from the birth of a child to challenge paternity rather than the traditional 6 months.
Similarly, as everyone knows, parenting is more than biology, so it seems that a nonbiological father who has had a long-standing, established relationship with a child should not be able to just walk away if a paternity test contradicts long-held beliefs and actions—not if the best interest of the child standard is upheld. Also, it is sad and ironic that in these paternity fraud cases, it is often the biological children of a man paying child support for a nonbiological child who suffer. How is the best interest of the child standard justified in such an instance?
Obviously, it is not, and the laws need to be revised in light of advances in science and medicine. There are no simple solutions to this conundrum, but there are clear steps that can be taken to catalyze the amelioration of unfairness to all parties. The first step is to increase the statute of limitations for challenging paternity for all men. Second, accept the use of DNA technology to clearly establish or disprove paternity at any stage of a paternity proceeding. Third, increase the penalties for men who evade paying child support and create penalties for women who intentionally mislead or defraud the government regarding a child’s paternity. Fourth, increase education about the responsibilities and consequences of sex and fathering a child. And fifth, foster laws that promote parental responsibility and honesty so that
‘‘Who’s your daddy?’’ will become just a slapstick, overused catchphrase.
Correspondence to: Susan Kerr Bernal (e-mail: [email protected]). Received for publication July 19, 2004; accepted for publication July 19, 2004.
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* Journal of Andrology welcomes letters to the editor regarding ‘‘Forum’’ articles and other ethical and legal issues of interest in your own practice or research. We also invite you to suggest topics that deserve attention in future issues. Papers appearing in this section are not considered primary research reports and are thus not subjected to peer review. Unsolicited manuscripts are welcome, and will be reviewed and edited by the Section Editor. All submissions should be sent to the Journal of Andrology Editorial Office.
1 There is a whole and separate body of law that varies from state to state addressing paternity and the use of assisted reproductive technologies (ART), as there is with respect to adoption. Because these parenting situations are less personal, in certain respects, the paternity issues and concerns involved with ART and adoption differ significantly from those discussed herein and deserve attention in their own right—attention beyond the scope of this article.
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Dispelling Myths About Unwed Fathers
By Sara McLanahan, Princeton University
The Fragile Families and Child Wellbeing Study http://opr.princeton.edu/crcw/ff
The Fragile Families and Child Wellbeing Study was developed to provide information about unmarried parents and their children. New mothers are interviewed in the hospital within 48 hours of their child's birth, and fathers are interviewed either in the hospital or elsewhere as soon as possible after the birth. The study will follow these parents and their children for at least four years to study the relationships in these families and to see what factors (including government policy) may push them closer together or pull them apart. Data are being collected in twenty cities with populations over 200,000. The data are representative of nonmarital births in each city, and the full sample will be representative of all nonmarital births in large cities in the U.S. Currently, we have data from the first seven cities in the study--Austin. Baltimore, Detroit, Newark, Oakland, Philadelphia, and Richmond.
DISPELLING MYTHS ABOUT UNMARRIED FATHERS The rise in single parenthood in the U.S. is well known. Today, nearly a third of all children born in the United States are born to unmarried parents; the proportions are even higher among poor and minority populations--40 percent among Hispanics and 70 percent among African Americans. Yet, we know very little about these families, particularly about the fathers. Consequently, much of what we read in the newspapers or hear on television about unwed parents is based on anecdotal rather than scientific evidence. This policy brief is intended to dispel three common myths about unwed fathers and their children. We refer to unmarried parents and their children as "fragile families" to underscore that they are families and that they are at greater risk of breaking up and living in poverty than more traditional families.
Myth #1: UNMARRIED BIRTHS ARE THE PRODUCT OF CASUAL RELATIONSHIPS. Many people believe that unwed births occur to couples who engage in casual sex and who don't know or care about one another. The data from the Fragile Families study do not support this myth. At the time their child is born, 82 percent of unmarried mothers and fathers are romantically involved, 44 percent are living together, and over 70 percent of mothers say their chances of marrying the baby's father are "50-50" or greater. Even among couples who are not romantically involved at the time of birth, about half of the mothers say they are friends with the father. Further, most parents favor marriage, as two-thirds of mothers and three-fourths of fathers agreed with the statement, "it is better for children if their parents are married."
Myth #2: UNMARRIED FATHERS DON'T CARE ABOUT THEIR CHILDREN. Some analysts have argued that men who father children outside of married do so in order to gain status and impress their peers and that they have minimal attachment to their children. Our findings do not support this view. Eighty-one percent of the mothers in the survey
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indicated that the father provided financial help during the pregnancy, and all fathers interviewed (99.8 percent) report that they want to be involved in raising their children in the coming years. Perhaps the best indicator of a father's intentions toward his child is whether or not he comes to the hospital to see the baby. Three-fourths of mothers reported that the father came to visit her and the baby in the hospital; the proportion was higher for couples who were living together (91 percent) and much lower for couples who were not romantically involved (37 percent).
Myth #3: UNMARRIED FATHERS ARE DANGEROUS, AND MOTHERS DON'T WANT THEM AROUND. Some advocates for single mothers have argued that non resident fathers, including unmarried fathers, are violent and potentially dangerous to the mother and child. To try and determine what proportion of unwed fathers fall into this group, we asked the mothers whether the father was physically violent and whether he had problems keeping a job or getting along with family and friends because of drug or alcohol use. Five percent of mothers reported that the father "often" or "sometimes" hit or slapped her when angry, and seven percent said that the father had problems because of alcohol or drug use. While such outcomes are very serious for the minority of mothers who report them (and these negative behaviors are likely underreported in surveys), this group of troubled fathers represents a small fraction of all unmarried fathers. Overall, 93 percent of unmarried mothers report that they want the father to be involved in raising their child. While the proportion is lower among mothers who are not romantically involved with the father (who are also more likely to report problems with physical violence or substance use), still, two thirds of these mothers indicate that they want their child's father to be involved.
RECOMMENDATIONS FOR POLICY AND PRACTICE Taken together, these data have important implications for public policy and particularly for the design of fatherhood programs. The results suggest that fatherhood programs can make a difference if they are targeted on the right men and if they are timed correctly. Practitioners who run fatherhood programs say that fathers' level of motivation has an important effect on whether the program will "work" or not. New fathers who are romantically involved with the mother are likely to be highly motivated and to take advantage of the services that fatherhood programs may provide. Thus, fatherhood programs should start at the hospitals, provide a range of services, and view their clients as members of a family--not only as individuals. The birth of the baby appears to present a "magic moment" for unmarried fathers and their families, and programs should endeavor to take advantage of this important time for new parents.
For additional information about the Fragile Families and Child Wellbeing Study, please visit our website at http://opr.princeton.edu/crcw/ff, email us at [email protected], or phone us at (609) 258-5894.
All materials © Council on Contemporary Families, 2003. All rights reserved. http://www.contemporaryfamilies.org/subtemplate.php?t=factSheets&ext=fact8
www.mwi.org CLOSURE 1
ACADEMY OF FAMILY MEDIATORS
GUIDELINES FOR MEMORANDA OF UNDERSTANDING (with and without children)
ASSETS Buy-out or residence by one spouse or ex- spouse Marital Residence a. Agreement regarding price 1. Some identification b. Time of transfer a. Property address or description c. Payment b. Indication of form of ownership d. Capital gains tax consequences 2. Use and possession or, if applicable, “incident to 3. A length of time for the responsibility divorce” for/liability for costs of e. How doe the parties deal with a. Present and future mortgages the non-owner staying on the (including equity lines) mortgage? b. Real estate taxes c. Homeowner’s insurance’s Other Real Estate d. Condo fees; if applicable 1. Some identification e. Maintenance 2. If applicable, the issues listed under f. Major repairs and/or marital residence improvements 3. Rental Property g. Capital gains taxes upon sale a. Who keeps income? 4. Changes in use and possession b. Who is responsible for upkeep of a. Upon the remarriage of one property? party -Tax consequences b. Upon a change in child custody 5. Future ownership form Additional Property a. Joint mortgage liability 1. Retirement Accounts b. Some acknowledgement of a. Description of plan(s) liability of both for mortgage and -Contributory plan possible difficulties obtaining -Defined benefit plan future mortgage for the non- b. Value of Plan occupant c. Division, buy-out or other Sale of residence to a third party disposition a. Timing of sale 2. Accounts b. Costs of preparation for sale a. Such as bank accounts, money c. Appraisal and agreement market funds or certificate of regarding price deposit d. Definition of proceeds b. Balance of account e. Division of proceeds c. Ownership f. Tax consequences, specifically d. Division or other disposition capital gains tax 3. Securities such as stocks, bonds, stock options
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CLOSURE 2
a. Identification 1. Filing of tax return
b. Balance of account 2. Refunds/Liabilities c. Ownership 3. Reporting of available deductions for d. Division, buy-out, or other each disposition 4. Tax consequences of alimony and child 4. Life Insurance support if not described elsewhere a. Identification 5. Capital gains tax consequences for all b. Cash balances assets and/or capital loss c. Ownership 6. Cooperation for audit/investigation of d. Division, buy-out, or other prior years tax returns disposition Additional Document Provisions 5. Business 1. Name an/or signature of the parties a. Identification 2. Name of mediator b. Description 3. Confidentiality c. Form of ownership 4. Disclosure of all financial information -If less than 100%, amount of 5. Mediator recommends separate and ownership independent legal advice d. Value 6. Mediation Clause e. Division, buy-out, or other a. Current disposition b. Future 6. Trusts 7. Privacy Clause a. Identification Alimony (spousal support or maintenance b. Value 1. Amount of support c. Division, buy-out, or other 2. Duration disposition 3. Time of payment 7. Partnerships and Limited Partnerships 4. Adjustments or fixed payments a. Identification a. How calculated b. Value b. COLA or some other method, c. Division, buy-out, or other including percentage method disposition c. Renegotiation 8. Tangible personal property 5. Tax Consequences a. Possession a. Tax deductibility b. Storage b. Tax reporting for inclusion of income c. Division 9. Pending Legal Action Liabilities a. Potential settlement award or 1. Mortgage, include equity line liability 2. Charge card accounts 10. Other Property including royalties, a. If joint: copyrights, trademarks, etc. -Future action 11. Vehicles -Responsibility b. If individual: Tax Consequences -Responsibility
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CLOSURE 3
3. Debt 5. Tax consequences
a. Kind of debt a. Not taxable to recipient b. Personal line of credit b. Not deductible by payor -Business line of credit -Student loans Education -Amount of debt a. If applicable c. Responsibility -Private primary education costs -Private secondary education costs MEMORANDUM OF AGREEMENT b. Post-secondary education costs With Children The same document standards as Health Insurance described with the addition of the 1. Policy in effect following: 2. Obligation of maintaining policy for: a. Children Parenting Agreement b. Spouse 1. Children indicated 3. Duration 2. Ages or birth dates 4. Change of policy 3. Legal Custody 5. Coverage of spouse 4. Physical custody a. Remarriage 5. Schedule for children b. Payments upon remarriage a. Weekdays 6. Uninsured expenses of children b. Weekends Holidays 7. Uninsured expenses of spouse c. Holidays d. Vacations Children’s Accounts 6. Notification of illness 1. Custodial accounts 7. Access to records a. Identification 8. Grandparents and/or others access b. Balance of accounts 9. Travel outside of a geographic area c. Who contributes 10. Relocation d. Future control of accounts 11. Change in custody or other provision e. Disposition of account
Child Support 2. Other investments, accounts 1. Amount of child support a. Identification 2. Time of payment b. Balance of accounts 3. Length of child support c. Who contributes a. Emancipation description d. Future control of accounts 4. Adjustments or fixed payment a. Description b. If more than one child c. COLA or some other method to adjust child support d. State guidelines e. Renegotiation Copyright 1998 Academy of Family Mediators
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CLOSURE 4
SAMPLE MEMORANDUM OF UNDERSTANDING
Memorandum of Understanding John C. Samuelson and Jane Samuelson1 Dated ______, 2021
PRELIMINARY INFORMATION
1. PROCEDURAL HISTORY. John L. Samuelson and Jane M. Samuelson decided to seek dissolution of their marriage due to an irretrievable breakdown of their marital relationship. Efforts to reconcile failed and the parties agreed that further efforts at reconciliation would not be in their best interest. Jane and John agreed to submit their dissolution issues to mediation and retained Pam Street and Bryan Road as their mediators.
2. STIPULATIONS AND PURPOSE OF MEMORANDUM. Jane and John are satisfied that each has made full disclosure to the other of the identity and value of all their individual and shared assets and liabilities. They acknowledge that the mediation process was voluntary and that the agreements they reached in mediation, as set forth in this Memorandum, are reasonable, fair and equitable. The parties further acknowledge that the mediators acted as neutral third party facilitators in a non- legal capacity pursuant to the terms of the Agreement to Participate in Mediation executed by the parties and mediators. John and Jane intend this Memorandum to serve as the primary basis for a separation agreement or other similar document (“Separation Agreement”) to be filed in a court of law in connection with their divorce.
3. RELEVANT FACTS. John is 57 years old (born January 1, 1964) and resides at 123 Main Street, Everett, Middlesex County, Massachusetts. He is employed as a physician and works at Regional Memorial Hospital. His gross annual income is approximately $200,000. Jane is 47 years old (born February 4, 1974) and resides at 987 Main St., Malden, Middlesex County, Massachusetts. She is employed part-time as a secretary and works at Local Insurance Company. Her gross annual income is $18,000. John and Jane were married in Boston, Massachusetts on January 1, 2007. This is each party’s first marriage. They have been separated since August 1, 2019. The parties have one child from their marriage, Andrea Marie Samuelson (born July 12, 2010). Jane is not now pregnant. Neither party has any other children.
4. CHANGE OF JANE’S NAME. Upon dissolution of the marriage, Jane shall be known as Jane M. Snyder.
1 Names and identifying information have been changed to protect confidentiality. www.mwi.org
CLOSURE 5
CONSULTATION WITH EXPERTS
5. LEGAL ISSUES. John and Jane chose not to have attorneys or other expert advisors present at mediation sessions and agree that each shall have an independent attorney review this Memorandum and any associated Separation Agreement before filing for divorce. The parties agree that if they cannot reach a mutual understanding in response to any recommendation made by an attorney regarding a substantial change or restructuring of the provisions of this Memorandum, they will try mediating the issue before seeking a related determination from a court of law.
6. TAX ISSUES. Jane and John have consulted with counsel and tax advisors to determine the tax consequences of their financial decisions related to child support, spousal maintenance and property division.
CONFIDENTIALITY
7. John and Jane agree that other than this Memorandum, the mediation sessions and related work-product are strictly confidential to the extent permitted by law. The parties agree not to call upon either mediator to (i) testify concerning the mediation or (ii) provide any materials from the mediation in any court proceedings between the parties.
EFFECTIVE DATE OF MEMORANDUM
8. The parties agree to be bound by the terms of this Memorandum, except to the extent that they conflict with any court-issued determination regarding the dissolution of the marriage, as of March 12, 2021.
CO-PARENTING ISSUES
9. CO-PARENTING STATEMENT. Jane and John agree to respect each other as co- parents and to keep their daughter Andrea’s best interests in mind while making arrangements for co-parenting. They also agree that it is in Andrea’s best interests for each parent to have an active and constructive role in providing a moral, social, economic and educational environment for Andrea.
10. CUSTODY. The parties agree that Jane shall have sole physical custody and that John and Jane shall share joint legal custody of Andrea. Andrea’s primary residence shall be with Jane. Jane and John agree to consult with each other on at least those major decisions related to the following areas: child care; primary, secondary and post-secondary education; religious/spiritual training; camp and other recreational activities; health care, including without limitation medical, dental, psychiatric, psychological and orthodontic care (except in the case of emergency situations
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where prior consultations are not practical). They further agree that the foregoing
list is not exhaustive and is intended to provide examples of topics reasonably expected to be of substantial concern to each parent.
11. AFFECTION AND RESPECT. Jane and John agree to exert every effort to maintain free access and unhampered contact between themselves and the other parent, and to foster affection and respect between Andrea and the other parent. Neither parent shall intentionally do anything to impair the natural development of Andrea’s love and respect for the other parent.
12. PARENTING SCHEDULE. In developing a parenting schedule for Andrea, John and Jane wish to maximize consistency and routine while remaining flexible, cooperative and sensitive to their child’s changing developmental needs, abilities and desires, as well as to the scheduling responsibilities of their own employment. In light of their past and current success in maintaining a flexible open schedule regarding Andrea’s time with each parent, the parties have decided not to set forth a specific schedule at this time. Instead, they agree that all of Andrea’s time with John, including holidays, birthdays, vacations and other travel involving overnight stays anywhere other than John or Jane’s residence, shall be as mutually agreed upon by the parties. Whenever travel is outside of Massachusetts, the traveling parent shall provide the other with a complete itinerary, including contact phone numbers and locations. Each party acknowledges that if at any time the parties disagree regarding Andrea’s time with each parent, then the other parent may seek a determination from a court of law to resolve the matter.
13. RELOCATION OF EITHER PARENT. Jane and John agree intend to remain in the Boston area. They agree that in the event either parent wants to move from their current home address to a location outside the Commonwealth of Massachusetts, he or she shall first obtain the consent of the other parent. They also acknowledge and agree that in connection with such a move, either parent may reopen the issues of the parenting schedule, child support, custody and/or primary residence. If they cannot reach a mutual understanding regarding a parent’s relocation, the parties will first attempt to mediate before seeking permission from a court to relocate.
14. ACCESS TO OTHER RELATIVES. John and Jane both recognize the importance of Andrea spending time with other relatives and will work to facilitate those relationships.
15. ACCESS TO RECORDS AND INFORMATION. Jane and John each agree to ensure that the other has full access to all information available from their child’s schools, medical, dental, religious and recreational resources, and will fully share that information. Each also agrees to make reasonable efforts to notify the other of all significant programs, meetings, performances, games and other activities that
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parents are allowed to attend.
16. NOTIFICATION OF ILLNESS. John and Jane agree to immediately notify the other parent of any emergency circumstances or substantial change in Andrea’s health. Each party agrees to provide the other’s name to all of Andrea’s emergency care providers.
17. RIGHT TO COMMUNICATE WITH CHILDREN. The parties agree that each will have unlimited right to correspond with Andrea via letter or email and to telephone her during reasonable hours without interference or monitoring by the other parent, or by anyone else on behalf of the other parent, in any way.
18. CHILD SUPPORT. Jane and John acknowledge that they referred to the Massachusetts Child Support Guidelines before reaching agreement regarding monthly child support.
a. PAYMENT AMOUNT. John shall pay Jane child support in the amount of $700 every other week starting with the week of June 1, 2021. In calculating this amount, the parties considered, in part, regularly occurring and periodic expenses related to Andrea’s care. Payments shall be adjusted by agreement of the parties in proportion to changes in the cost and applicability of such expenses, and as otherwise provided herein.
b. FORM AND TIMING OF PAYMENTS. Payments shall be made by personal check made out to Jane and received by her no later than the first and third Monday of each calendar month.
c. TERMINATION OF PAYMENTS. John will pay child support to Jane until Andrea is emancipated.
d. FIXED PAYMENTS OR ADJUSTMENTS. Jane and John agree that they shall review child support arrangements together upon either party’s reasonable request, including as a result of any of the following events: i. Either parent’s net income increases or decreases substantially; ii. Either parent loses or changes employment.
e. DEPENDENT TAX EXEMPTION. John and Jane agree that John shall claim Andrea as a dependent for state and federal income tax purposes. They agree to execute any appropriate or necessary waivers in connection with the assignment of the dependency exemption.
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f. INCOME WITHHOLDINGS. The parties understand that under this child
support agreement, Jane can seek income withholdings when arrearages are at least equal to the child support payment for one month.
g. LIFE INSURANCE. John currently maintains term life insurance in the amount of $250,000 and agrees to maintain the respective policy or one of equal value, with Andrea as sole beneficiary and the other parent as trustee, as applicable, at least until Andrea’s 18th birthday.
h. DISABILITY INSURANCE. Each party agrees to make every effort to maintain a level of disability insurance coverage adequate to cover his or her portion of the expenses related to Andrea’s daily care as provided in this document and otherwise until Andrea reaches the age of 18.
19. EDUCATION.
a. SCHOOL TUITION AND OTHER COSTS. Jane and John agree that they shall educate Andrea in the best possible educational environment by their mutual agreement. John shall cover the costs of this education, whether in public or private institutions, through college or an equivalent level.
b. SUMMER SCHOOL PROGRAMS AND EXTRA CURRICULAR ACTIVITIES. Unless otherwise agreed by the parties, these expenses shall be covered by John. Examples of programs and activities that might be applicable include music lessons, camp and sports.
20. HEALTH AND DENTAL INSURANCE. Andrea is currently covered on John’s health insurance policy. As long as Andrea is eligible for coverage on a parent’s insurance policy, the parties agree to cooperate to obtain the most cost effective and comprehensive major medical insurance coverage available. John shall cover the cost for carrying Andrea on a health and/or dental policy or policies, regardless of the circumstances and source of coverage. If Andrea is not covered under John’s policy, then she shall be covered under a policy mutually agreed upon by the parties. Remarriage of a party shall not affect this provision.
21. UNINSURED ORDINARY MEDICAL, DENTAL, AND VISION EXPENSES. With respect to Andrea, any such costs over $25 shall be covered by John and shall be determined by mutual agreement of the parties.
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22. UNINSURED EXTRAORDINARY MEDICAL, DENTAL, ORTHODONTIA, VISION, AND
PSYCHOLOGICAL EXPENSES. With respect to Andrea, any such costs over $25 shall be covered by John and shall be determined by mutual agreement of the parties.
23. CHANGE OF THE CHILD’S NAME. Jane and John agree that neither parent will at any time, nor for any reason, cause Andrea to be formally known, identified, or designated by any other than her birth name.
24. REVIEW OF CO-PARENTING AGREEMENT. John and Jane agree that their agreements with respect to co-parenting are subject to reevaluation and change, and they agree to review co-parenting agreements, from time to time, concerning adequacy, feasibility, and appropriateness. Such review shall include the consideration of, for example, the age, welfare and developmental progress of the child, and the parents’ ability to cooperate effectively and consistently with one another.
DIVISION OF ASSETS AND LIABILITIES
25. MARITAL RESIDENCE. The marital residence is located at 987 Main St., Malden, Massachusetts, with title in John’s name. Based on various factors, including a recent appraisal, the parties estimate the value of the house and property at approximately $210,000. John carries one outstanding mortgage on the home in the amount of approximately $103,269. The present equity in this home is approximately $106,731. Mortgage payments are approximately $1,350 per month plus approximately $170 in condominium fees.
a. The parties agree that Jane shall be entitled to live in the house for as long as she desires until Andrea reaches the age of 21. While living in the house, Jane may make improvements at her discretion, provided she notifies John in advance of the general nature of the improvement to be made. John may also make improvements with the same type of consent from Jane, as well as all other improvements and repairs necessary to maintain the functionality and value of the home. Unless otherwise agreed by the parties, each party shall be responsible for the cost of his or her improvements.
b. The parties agree that, while Jane lives in the home, she will pay the mortgage payment.
c. If at any time during Jane’s life, the home is sold, any net profits from the sale shall be shared equally by the parties with John being responsible for all capital gains taxes and any fees involved in the sale of the home.
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26. OTHER REAL ESTATE. John owns and shall keep a timeshare condominium at 456 Seaside Drive, Newport, Rhode Island, worth approximately $25,000.
27. VEHICLES. John owns a 2012 Toyota Camry worth approximately $1,987 and Jane owns a 2016 Jeep Cherokee worth approximately $6,000. Each party shall keep his or her own automobile. John also owns and shall keep his 2015 Boston Whaler motor boat and trailer currently worth approximately $1,990. There are no loans in existence for any of these vehicles.
28. BANK ACCOUNTS. All checking, savings and money market accounts are the property of the person whose name is on the account. There are no joint accounts.
29. RETIREMENT INVESTMENTS AND BENEFITS. John’s A.G. Edwards SEP account is worth approximately $35,700. The sole beneficiary of this account shall be Andrea, with Jane as trustee. John’s Vanguard 403B, TIAA-CREF, Fidelity 403B and Vanguard and Scudder IRA accounts are worth approximately $58,000. Jane’s Vanguard 403B and Vanguard and Scudder IRA accounts are worth approximately $49,000. Each party agrees that he or she is entitled only to the retirement investments and benefits currently in his or her name.
30. OTHER ASSETS. All other assets have been divided to the mutual satisfaction of the parties.
31. OTHER PERSONAL PROPERTY. Jane and John agree that they have divided all of their personal property to their mutual satisfaction.
32. DEBTS. Each party shall remain responsible only for the debts in his or her own name.
33. INCOME TAX. Jane and John agree to share equally in any additional tax, penalties, interest, other expenses and refunds that may result from income tax audits for returns filed during the years of their marriage.
34. INHERITANCE RIGHTS. John and Jane agree to waive any inheritance rights they may have against the other party.
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35. EXPERT AND OTHER FEES. John has and will continue to pay all mediator fees
incurred in connection with the divorce. Each party shall pay for their own attorney fees, accountant fees and any other costs incurred in connection with the divorce
TAX FILINGS
36. For the tax year ending on December 31, 2020, Jane and John shall file a joint tax return and shall share equally in any refunds or penalties associated with the filing.
SPOUSAL MAINTENANCE/SPOUSAL SUPPORT/ALIMONY
37. John shall pay Jane spousal support in the amount of $1,600 every other week starting on May 1, 2021 in the form and timing provided for child support payments above.
a. In calculating this amount, the parties considered, in part, the following anticipated monthly expenses for Jane: 987 Main St. Mortgage $1,350 Condominium Fees $ 170 Electric $ 280 Andrea’s School $ 200 Telephone $ 350 Cable Television $ 80 Car Insurance $ 109
b. Except as provided herein and after consultation with their respective attorneys, John and Jane waive any past, present and future spousal maintenance rights to which they might be entitled, and agree not to seek or claim such support in the future.
HEALTH INSURANCE
38. To the extent John’s health insurance policy allows for coverage of an ex-spouse, he shall maintain and pay for such coverage for Jane. Such ex-spouse coverage shall continue until the earlier of (i) a change in the policy prohibiting coverage of an ex- spouse, (ii) remarriage of the ex-spouse or (iii) the end of Andrea’s coverage under the policy for any reason.
ACCESS TO 987 MAIN STREET
39. The parties agree to respect the other’s privacy of his or her residence. Except in the case of emergencies, neither party shall enter the home of the other for any reason without explicit prior permission. Unless Jane tells him otherwise, John may also use
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his key to enter the home at a time scheduled for dropping off or picking up Andrea.
Neither party shall bring friends, relatives or any other person into the home of the other without explicit prior permission.
DISPUTE RESOLUTION
40. Jane and John agree to exert every effort to cooperatively resolve any disagreements that arise in connection with their divorce. They agree that if such efforts fail, they shall first use reasonable efforts to resolve the relevant issues through mediation before seeking any determination from a court of law.
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SAMPLE MEMORANDUM OF UNDERSTANDING
Memorandum of Understanding Charles Murchison and Elise Murchison2 Dated ______, 2021
PRELIMINARY INFORMATION
1. PROCEDURAL HISTORY. Charles J. Murchison and Elise M. Murchison decided to seek dissolution of their marriage due to an irretrievable breakdown of their marital relationship. Efforts to reconcile failed and the parties agreed that further efforts at reconciliation would not be in their best interest. Elise and Charles agreed to submit their dissolution issues to mediation and retained Joe Smith and Peter Adams as their mediators.
2. STIPULATIONS AND PURPOSE OF MEMORANDUM. Elise and Charles are satisfied that each has made full disclosure to the other of the identity and value of all their individual and shared assets and liabilities. They acknowledge that the mediation process was voluntary and that the agreements they reached in mediation, as set forth in this Memorandum, are reasonable, fair and equitable. The parties further acknowledge that the mediator acted as a neutral third party facilitators in a non- legal capacity pursuant to the terms of the Agreement to Participate in Mediation executed by the parties and mediator. Charles and Elise intend this Memorandum to serve as the primary basis for a separation agreement or other similar document (“Separation Agreement”) to be filed in a court of law in connection with their divorce.
3. RELEVANT FACTS. Charles is 47 years old (born December 25, 1973) and resides in Waltham, Middlesex County, Massachusetts. He is employed as a software engineer. His gross annual income is approximately $100,000. Elise is 47 years old (born November 25, 1973) and resides in Wollaston, Middlesex County, Massachusetts. She is employed as a software engineer. Her gross annual income is $82,000. Charles and Elise were married in Arlington, Massachusetts on December 25, 2010. This is each party’s first marriage. They have been separated since February 25, 2018. The parties have one child from their marriage, Michael Donald Murchison (born December 25, 2012). Elise is not now pregnant. Neither party has any other children.
4. CHANGE OF ELISE’S NAME. Upon dissolution of the marriage, Elise shall be known as Elise V. Hamilton.
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CONSULTATION WITH EXPERTS
5. LEGAL ISSUES. Charles and Elise chose not to have attorneys or other expert advisors present at mediation sessions and agree that each shall have an independent attorney review this Memorandum and any associated Separation Agreement before filing for divorce. he parties agree that if they cannot reach a mutual understanding in response to any recommendation made by an attorney regarding a substantial change or restructuring of the provisions of this Memorandum, they will try mediating the issue before seeking a related determination from a court of law.
6. TAX ISSUES. Elise and Charles have consulted with counsel and/or tax advisors to determine the tax consequences of their financial decisions related to child support, spousal maintenance and property division.
CONFIDENTIALITY
7. Charles and Elise agree that other than this Memorandum, the mediation sessions and related work-product are strictly confidential to the extent permitted by law. The parties agree not to call upon either mediator to (i) testify concerning the mediation or (ii) provide any materials from the mediation in any court proceedings between the parties.
EFFECTIVE DATE OF MEMORANDUM
8. The parties agree to be bound by the terms of this Memorandum, except to the extent that they conflict with any court-issued determination regarding the dissolution of the marriage, as of March 12, 2021.
CO-PARENTING ISSUES
9. CO-PARENTING STATEMENT. Elise and Charles agree to respect each other as co- parents and to keep their son, Michael’s, best interests in mind while making arrangements for co-parenting. They also agree that it is in Michael’s best interests for each parent to have an active and constructive role in providing a moral, social, economic and educational environment for Michael.
10. CUSTODY. Charles and Elise agree they will share joint physical and joint legal custody and that each is a fit parent and proper person to care for the minor child, Michael. Elise and Charles will jointly share the custody, parenting rights and responsibilities of their child. Elise and Charles agree to consult with each other on major decisions relative to the following areas: child care; primary, secondary and post-secondary education; religious/spiritual training; camp and other recreational activities; health care, including without limitation medical, dental, psychiatric,
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psychological and orthodontic care, except in the case of emergency situations
where prior consultations are not practical. They further agree that the foregoing list is not exhaustive and is intended to provide examples of topics reasonably expected to be of substantial concern to each parent.
11. PRIMARY RESIDENCE. Charles and Elise agree that for all practical purposes, such as school districting and receipt of mail, Michael’s primary residence shall be with Elise.
12. AFFECTION AND RESPECT. Elise and Charles agree to exert every effort to maintain free access and unhampered contact between themselves and the other parent, and to foster affection and respect between Michael and the other parent. Neither parent shall intentionally do anything to impair the natural development of Michael’s love and respect for the other parent.
13. PARENTING SCHEDULE. In developing this schedule for Michael, Charles and Elise wish to maximize consistency and routine while remaining flexible, cooperative and sensitive to their child’s changing developmental needs, abilities and desires, as well as to the scheduling responsibilities of their own employment. Charles and Elise agree that Michael’s time with each parent shall be as set forth in this section, or as otherwise mutually agreed upon by the parties.
a. GENERAL. Charles will pick Michael up from Elise’s home each Wednesday morning at 7:15 a.m. and Elise will pick Michael up from Charles’s home each Thursday morning at 7:45 a.m. Elise will drop Michael off at Charles’s home each Saturday morning at 9:00 a.m. and Charles will drop Michael off at Elise’s home each Sunday morning at 9:00 a.m. In addition, Charles will visit with Michael each Monday evening at Elise’s home at times mutually agreed by the parties.
b. HOLIDAYS. Elise and Charles agree that Michael will spend the holidays listed below with the parent indicated in the table below.
Thanksgiving Alternate each year starting with Charles in 2021 Christmas Elise New Year’s Eve/Day Alternate each year starting with Charles in 2022 Chanukah Charles Rosh Hashanah Charles Yom Kippur Charles Passover Charles Easter Elise July 4th Alternate each year starting with Charles in 2021 MLK Day Alternate each year starting with Elise in 2021 President’s Day Alternate each year starting with Elise in 2021
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Patriot’s Day Alternate each year starting with Elise in 2021
Memorial Day Alternate each year starting with Elise in 2021 Labor Day Alternate each year starting with Elise in 2021 Columbus Day Alternate each year starting with Elise in 2021
c. BIRTHDAYS. Charles and Elise agree that they will celebrate Michael’s birthday on a shared basis with details to be arranged on a case-by-case basis by agreement of the parties.
d. VACATIONS/TRAVEL. Elise and Charles agree that each parent may take Michael for up to 3 weeks, including 4 weekends, per year. When travel is outside of Massachusetts, the traveling parent shall provide the other with a complete itinerary, including contact phone numbers and locations. Two weeks notice will be provided to each parent when taking Michael for any vacation days. For school vacations, Michael will be with Elise for December vacation, Charles for February vacation, and April vacation will be split by Elise and Charles.
14. RELOCATION OF EITHER PARENT. Elise and Charles agree that in the event either parent wants to move from their current home address to a location outside the Commonwealth of Massachusetts, he or she shall first obtain the consent of the other parent. They also acknowledge and agree that in connection with such a move, either parent may reopen the issues of the parenting schedule, child support, custody and/or primary residence. If they cannot reach a mutual understanding regarding a parent’s relocation, the parties will first attempt to mediate before seeking leave of court to relocate.
15. ACCESS TO OTHER RELATIVES. Charles and Elise both recognize the importance of Michael spending time with other relatives and will work to facilitate those relationships.
16. ACCESS TO RECORDS AND INFORMATION. Elise and Charles each agree to ensure that the other has full access to all information available from their child’s schools, medical, dental, religious and recreational resources, and will fully share that information. Each also agrees to make reasonable efforts to notify the other of all significant programs, meetings, performances, games and other activities that parents are allowed to attend.
17. NOTIFICATION OF ILLNESS. Charles and Elise agree to immediately notify the other parent of any emergency circumstances or substantial change in Michael’s health.
18. RIGHT TO COMMUNICATE WITH CHILDREN. The parties agree that each will have unlimited right to correspond with Michael via letter or email and to telephone him
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uring reasonable hours without interference or monitoring by the other parent, or
by anyone else in any way.
19. CHILD SUPPORT. Elise and Charles acknowledge that they referred to the Massachusetts Child Support Guidelines before reaching agreement regarding monthly child support.
a. PAYMENT AMOUNTS. Charles shall pay Elise child support in the amount of $1,600 per month from May 1, 2021 through August 31, 2021 and in the amount of $1,450 per month thereafter. In calculating these amounts, the parties considered expenses related to Michael including (i) 50% of the cost of day care, preschool, family plan medical and dental insurance, and college savings plans. (ii) housing and expenses related to child care and (iii) $116 per month in car insurance payments. Payments shall be adjusted by agreement of the parties in proportion to changes in the cost and applicability of such expenses, and as otherwise provided herein.
20. CHILD SUPPORT AND OTHER MONTHLY PAYMENTS
a. PAYMENT AMOUNTS. i. Charles shall pay Elise $1,600 per month, starting May 1, 2021. This amount was calculated using the Massachusetts Child Support Guidelines.
b. FORM AND TIMING OF PAYMENTS. Payments shall be made by personal check made out to Elise and received by her no later than the first day of each calendar month.
c. TERMINATION OF PAYMENTS. Charles will pay child support to Elise until Michael is emancipated (as determined under Massachusetts law). The amount of child support paid by Charles will be re-negotiated at the time of Michael’s high school graduation.
d. FIXED PAYMENTS OR ADJUSTMENTS. Elise and Charles agree that they shall review child support arrangements together upon either party’s reasonable request, including as a result of any of the following events:
i. Either parent’s net income increases or decreases substantially;
ii. Either parent loses employment.
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e. DEPENDENT TAX EXEMPTION. Charles and Elise agree that Elise shall
claim Michael as a dependent for state and federal income tax purposes. They agree to execute any appropriate or necessary waivers in connection with the assignment of the dependency exemption.
f. INCOME WITHHOLDINGS. The parties understand that under this child support agreement, Elise can seek income withholdings when arrearages are at least equal to the child support payment for one month.
g. LIFE INSURANCE. Each party currently maintains term life insurance in the amount of $200,000 and agrees to maintain the respective policy or one of equal value, with Michael as sole beneficiary and the other parent as trustee, as applicable, at least until Michael’s 20th birthday.
21. EDUCATION.
a. SCHOOL TUITION AND OTHER COSTS. Elise and Charles agree that they shall educate Michael in the best possible educational environment by their mutual agreement. The costs of this education up to a graduate school or equivalent level, including reasonable school expenses, shall be shared equally with each party contributing 50% of the associated costs. At least one half of the costs of education at the graduate school or equivalent level shall also be shared equally with each parent contributing at least 25% of the total costs. Each parent will contribute $300 per month into Michael’s college education fund.
b. SUMMER SCHOOL PROGRAMS AND EXTRA CURRICULAR ACTIVITIES. These expenses shall be shared equally and determined by mutual agreement of the parties. Examples of programs and activities that might be applicable include music lessons, camp and sports. Michael’s participation in organized sports shall require the consent of both parents until he graduates from high school.
b. RELIGIOUS EDUCATION. The parties agree that Michael may be exposed to and educated in each of the religions of the parents, Judaism and Roman Catholicism, with each parent responsible for the education of Michael in his or her own religion.
22. HEALTH AND DENTAL INSURANCE. Michael is currently covered on Elise’s health insurance policy. As long as Michael is eligible for coverage on a parent’s insurance policy, the parties agree to cooperate to obtain the most cost effective, comprehensive major medical insurance coverage available. Each party shall contribute 50% of the cost for carrying Michael on a health and/or dental policy,
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regardless of the circumstances and source of coverage. Remarriage of a party shall
not effect this provision.
23. UNINSURED ORDINARY MEDICAL, DENTAL, AND VISION EXPENSES. With respect to Michael, any such costs over $50 shall be shared equally by Charles and Elise and shall be determined by mutual agreement of the parties.
24. UNINSURED EXTRAORDINARY MEDICAL, DENTAL, ORTHODONTIA, VISION, AND PSYCHOLOGICAL EXPENSES. With respect to Michael, any such costs over $50 shall be shared equally by Charles and Elise and shall be determined by mutual agreement of the parties.
25. CHANGE OF THE CHILD’S NAME. Elise and Charles agree that neither parent will at any time, nor for any reason, cause Michael to be known, identified, or designated by any other than his birth name.
26. REVIEW OF CO-PARENTING AGREEMENT. Charles and Elise recognize that their agreements with respect to co-parenting are subject to reevaluation and change, and they agree to review co-parenting agreements, from time to time, concerning adequacy, feasibility, and appropriateness. Such review shall include the consideration of, for example, the age, welfare and developmental progress of the child, and the parents’ ability to cooperate effectively and consistently with one another.
DIVISION OF ASSETS AND LIABILITIES
27. MARITAL RESIDENCE. The marital residence is located at 1234 Main Street, Wollaston, Massachusetts, with title in both Charles’ and Elise’s names. Based on various factors including a recent appraisal, the parties estimated the value of the house at approximately $444,000. They carried one mortgage in the amount of approximately $307,000. The present equity in this home is approximately $110,000. Mortgage payments were approximately $2,600 per month. Elise refinanced the mortgage and purchased Charles’s 50% interest in the property on January 25, 2016. Charles’s interest in the equity of the marital home was $55,000. Elise paid Charles $26,000 on February 13, 2018, and shall pay $4,000 ($200 per month for 20 months) through October 31, 2021. She shall pay the remaining $25,000 over the subsequent 50 months at the rate of $500 per month. Elise shall not pay any interest in connection with these payments and shall cover all the costs of refinancing. Upon Elise’s purchase of Charles’s interest, Charles’s name was removed from the title to the property. The parties agree that Elise shall have the sole decision-making authority as to when, at what price, and in what manner the house shall be sold.
28. VEHICLES. Charles owns a 2018 Subaru Impreza worth approximately $12,000 and
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Elise owns a 2016 Toyota Camry worth approximately $7,000. Each party shall keep
his or her own vehicle.
29. BANK ACCOUNTS. All checking, savings and money market accounts are the property of the person whose name is on the account. There are no joint accounts.
30. RETIREMENT INVESTMENTS AND BENEFITS. Charles’s Vanguard 403B, TIAA-CREF, Fidelity 403B and Vanguard and Scudder IRA accounts are worth approximately $58,000. Elise’s Vanguard 403B and Vanguard and Scudder IRA accounts are worth approximately $49,000. Each party agrees that he or she is entitled only to the retirement investments and benefits currently in his or her name.
31. ADDITIONAL INVESTMENTS AND ASSETS. All other assets have been divided to the mutual satisfaction of the parties. Repayment of an outstanding loan in the amount of $3,000 made to Charles’s sister will be shared equally as payments are received.
32. OTHER PERSONAL PROPERTY. Elise and Charles agree that they have divided all of their personal property to their mutual satisfaction.
33. DEBTS. Neither Charles nor Elise has any debts.
34. INCOME TAX. Elise and Charles agree to share equally in any additional tax, penalties, interest, other expenses and refunds that may result from income tax audits for returns filed during the years of their marriage.
35. INHERITANCE RIGHTS. Charles and Elise agree to waive any inheritance rights they may have against the other party.
36. EXPERT FEES. All mediator fees have been and will be paid in full out of marital funds. Each party shall pay for their own attorney fees and costs incurred in connection with the divorce.
TAX FILINGS
37. For the tax year ending on December 31, 2021, Elise and Charles shall file a joint tax return and shall share equally in any refunds or penalties associated with the filing.
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SPOUSAL MAINTENANCE/SPOUSAL SUPPORT/ALIMONY
38. In connection with their divorce and after consultation with their respective attorneys, Charles and Elise waive any past, present and future spousal maintenance rights to which they might be entitled, and agree not to seek or claim such support in the future.
HEALTH INSURANCE
39. To the extent a party’s health insurance policy allows for coverage of an ex-spouse, the policy-holding party shall maintain such coverage for the ex-spouse; provided, however, that the ex-spouse shall pay for any costs that would otherwise not be necessary. Such ex-spouse coverage shall continue until the earlier of (i) a change in the policy prohibiting coverage of an ex-spouse, (ii) remarriage of the ex-spouse or (iii) the end of Michael’s coverage under the policy for any reason. This paragraph is to be read in conjunction with the paragraph above regarding Michael’s health and dental insurance coverage. For example, if Michael is covered by a health insurance family policy through Elise’s employer and the policy allows for ex-spouse coverage, each party would pay 50% of the cost associated with coverage for Michael and Charles would pay 100% of any additional cost associated with including Charles on the policy.
DISPUTE RESOLUTION
40. Elise and Charles agree to exert every effort to cooperatively resolve any disagreements that arise in connection with their divorce. They agree that if such efforts fail, they shall first use reasonable efforts to resolve the relevant issues through mediation before seeking any determination from a court of law.
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SAMPLE SEPARATION AGREEMENT
COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT PROBATE AND FAMILY COURT DEPARTMENT
NORFOLK, ss. Docket No. ______
MATTHEW SMITHFIELD, Petitioner
and SEPARATION AGREEMENT
AUDREY SMITHFIELD, Petitioner ______
This Separation Agreement is made on this day of 2021, between
Audrey Smithfield, of 123 Road Ave., Canton, MA 02169 (hereinafter “Wife”), and
Matthew Smithfield of 1456 Key St., Stoughton, MA 02021 (hereinafter “Husband”), to
declare the rights and responsibilities of the parties upon their divorce under M.G.L. c.
208 § 1A.
i. STATEMENT OF FACTS
1. The parties were married in Sharon, Massachusetts on June 18, 2001.
2. The parties last lived together in Quincy, Massachusetts on February 22, 2016.
3. There are two minor Children of this marriage: Joseph Smithfield, DOB 10/6/07 and
Dani Smithfield, DOB 12/22/08 (hereinafter “Children”).
4. The parties both declare and acknowledge that they have read and understood all
terms, provisions, and conditions of this Agreement and believe its terms, www.mwi.org
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provisions, and conditions to be fair and reasonable. The Husband and the Wife
further acknowledge that each has had independent advice by counsel of their own
choosing; that each has been fully advised of their respective rights and obligations
and of all facts and circumstances set forth herein. Each party signs this Agreement
voluntarily and fully accepts its terms.
5. This Agreement is a complete and final settlement between the parties of all
matters pertaining to alimony, division of property and debt, and all other rights and
obligations arising out of their marital relationship, in view of their separation and
pending divorce.
6. Each party executes this Agreement based upon his or her personal knowledge and
upon the representations of the other party and in reliance on the information set
forth on the other party’s most current financial statement incorporated herein by
reference, which they each believe to be a true, complete, and accurate reflection of
the other party’s current financial status and circumstances.
7. The Husband and the Wife have incorporated into this Agreement their entire
understanding. The parties have not made or relied on any promises, warranties, or
representations other than those expressly set forth herein.
In consideration of the promises and mutual understandings contained
Hereafter, the parties agree as follows:
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ARTICLE I
SEPARATE STATUS
8. From the date of this Agreement Husband and Wife may continue to live separate
and apart from one another. Wife and Husband shall each respect the right of the
other to engage in any employment and to pursue any educational, social or
religious interests as he or she may choose. Each party may hereafter reside at such
place or places as he or she may select.
ARTICLE II
CUSTODY AND PARENTING
9. Wife shall have sole physical custody of the minor Children, whose present place of
residence is with the Wife and the Children shall continue to have their place of
residence with the Wife.
10. Husband and Wife shall have joint legal custody.
11. Husband and Wife agree to respect each other as co-parents and for each of them
to have an active role in providing a moral, social, economic and educational
environment for the Children.
12. Husband will have parenting time with the Children every other Friday from 5:00
PM to Sunday at 7:00 PM. Every Thursday Husband will pick up the Children from
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CLOSURE 25
Either Husband or Wife will provide transportation for scheduled visits. Husband
may have unlimited additional parenting time upon mutual agreement by the
parties.
13. Husband and Wife both recognize the importance of the children spending time
with one another and will be flexible around the Children’s schedules.
14. Husband and Wife will each have the Children for a two- week vacation during the
summer.
15. If the Children wish to be with the Wife during Husband’s scheduled vacation, Wife
may make arrangements with the Husband and pick up and return the Children to
the Husband after the parenting time.
16. Starting 2021 Christmas Eve and Christmas morning will be with the Wife. Wife will
drop off the Children to the Husband by 12:00 PM on Christmas day. This
arrangement will alternate every year.
17. Husband will visit with the Children every other Easter morning from 9:00 AM to
11:00 AM.
18. Husband will visit with the children every other Thanksgiving.
19. If a holiday is celebrated on a Monday, the parent having the children that
weekend will have the children for the holiday.
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20. Husband and Wife will advise the other parent where the Children can be reached in
the event of emergency. Neither party shall refuse nor neglect to inform the other
of his or her address and phone number while the Children are in his or her care.
21. Husband or Wife may remove the Children from the Commonwealth during his or
her scheduled visitation only. Neither party may relocate from the Commonwealth
with the Children without the other parent’s permission.
22. Husband and Wife will immediately notify the other parent of any emergency or
change in the Children’s health. Each party agrees to provide the name of all of the
Children’s emergency care providers.
23. Each parent shall have unlimited telephone correspondence with the Children
during reasonable hours.
ARTICLE III
CHILD SUPPORT
24. Husband shall pay $350.00 a week to the Wife for child support of the Children.
Child support shall be by wage assignment. Payments shall be adjusted by
agreement of the parties in proportion to changes in overtime payment to the
Husband. Husband shall provide Wife with a copy of his W-2 by January 30th of
every year.
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25. Husband and Wife will equally share the costs of extra curricular activities for the
children such as soccer, music, and camp. Husband and Wife will discuss each
separate activity before payment is made.
ARTICLE IV EMANCIPATION 26. Emancipation of the children under this Agreement shall be deemed to take place
upon the first to occur of the following events:
a. attainment of age 18 or graduation from high school whichever occurs latest;
however, if the child continues as a full-time college or vocational student,
emancipation will occur at the attainment of age 23;
b. full time employment after the age of 16, but not including summer employment
during vacation periods;
c. marriage of the Child;
d. permanent residence away from principal place of residence (residence at
boarding school or camp, for example, will not be deemed residence away from
principal place of residence)’
e. entry into the military services of the United States of America;
f. death of the Child; or
g. as provided by statute.
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ARTICLE V
TAX DEDUCTIONS
27. For tax year ending December 31, 2021, Husband has filed the tax return married
but separately and shall share equally with the Wife any refunds after the uninsured
dental bill has been paid. Husband has given the Wife the 2020 State refund.
28. The Child Tax Credit shall default to head of household the funds shall be deposited
into the 529 College Savings Plan.
29. Husband agrees to take responsibility for any additional tax, penalties, interest, and
other expenses and refunds that may result from income tax audits for returns filed
during the years of marriage.
ARTICLE VI
HEALTH INSURANCE
30. The Husband shall maintain in full force and effect his current comprehensive
health and dental insurance coverage or its reasonable equivalent, for the benefit of
the Children and Wife. The Husband will maintain said coverage until the youngest
child is emancipated or either party remarries.
31. Husband and Wife shall be responsible for the payment of his or her uninsured
medical, dental, psychiatric, prescription and hospital expenses.
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CLOSURE 29
32. Husband will pay the first $500.00 of uninsured ordinary medical, dental and vision
expenses for the Children. Husband and Wife shall equally share additional expenses
for the Children.
ARTICLE VII
ALIMONY
33. Both Husband and Wife waive future, past and present alimony.
ARTICLE VIII
DIVISION OF PROPERTY
34. The marital residence located at 123 Road Ave, Canton MA shall be sold. The
Husband shall pay for all repair and paint costs associated with the sale of the
property. Wife is willing to discuss contributing to these costs.
35. Husband’s sister shall be paid $3,000 (three thousand dollars) from the proceeds
from the sale of the home for a loan taken to purchase the marital home.
36. The remaining proceeds, after payment to Husband’s sister, full payment of Wife’s
Pontiac, and any other debts shared at the time of the sale, shall then be divided
equally between the parties.
37. The parties have divided to their satisfaction any and all personal property brought
to or acquired by either of them during their marriage. Neither the Husband nor the
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CLOSURE 30
Wife shall, after the date of this Agreement, make any claim or request, or bring any
action against the other regarding any personal property acquired by either of them
from the time of their marriage to the date of this Agreement, or in the future.
38. Wife shall receive 50% of the amount in Husband’s Smith County Retirement
account as of the date of this agreement. A Qualified Domestic Relations Order
(QDRO) shall be filed with the court and the plan administrator at the time of the
divorce.
ARTICLE IX
WAIVER OF ESTATE CLAIM
39. Except as to any claims provided in this Agreement, after the date of this
Agreement, the Husband and the Wife each expressly waives all right to take against
the last will or the estate of the other party or to serve as executor or administrator
of the estate of the other party unless expressly provided by will or codicil of the
other party.
40. The Husband and the Wife shall each have the right to dispose of his or her property
at will, or otherwise, in such manner as each may in his or her discretion decide to
be proper; and neither will claim any interest in the estate of the other except to
enforce any obligation imposed by this Agreement.
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ARTICLE X
DEBTS AND OBLIGATIONS
41. Husband and the Wife agree that each will be solely responsible for all debts
individually held in their names. Each party agrees that he or she will not hereafter
make any purchases or contracts or incur any expenses or debts in the name of the
other or from which the other’s legal representatives, property or estate are or may
be liable.
42. Husband will sign over the title to the 2016 Honda Accord to Wife and Husband shall
retain ownership of his 1972 Ford Mustang Convertible.
ARTICLE XI
MUTUAL RELEASE
43. The Husband and the Wife agree to accept the provisions set forth in this Agreement
in full satisfaction and discharge of all claims, past, present and future, which either
party may have against the other, and which in any way arise out of the marital
relationship.
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ARTICLE XII
EFFECT OF THIS AGREEMENT
44. Each party agrees that he or she will promptly carry out any and all acts, including
signing, acknowledging and delivering all documents, which may be necessary to
give full effect to this Agreement.
45. The failure of either party to insist upon the strict performance of any terms shall
not be construed as a waiver of such terms for the future, and the same terms shall
nevertheless continue to be in full force and effect.
46. A copy of this Agreement shall be submitted to the Court and on all matters shall be
incorporated and merged in the judgment of the Court.
47. If any part of this Agreement is held invalid, such invalidity shall not affect the entire
Agreement, but the remaining provisions of this Agreement shall continue to be
valid and binding to the extent that such provisions continue to reflect fairly the
intent and understanding of the parties.
48. This Agreement shall be construed and governed according to the laws of the
Commonwealth of Massachusetts.
49. The parties agree that minimizing future litigation is in the best interest of the
parties and their Children, and they will attempt to cooperatively resolve disputes
amongst themselves. If they are unable to resolve a dispute they will first return to
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CLOSURE 33
mediation or seek assistance through lawyers before seeking any determination
from a court of law.
The Husband and the Wife have executed this Agreement in three (3) original
counterparts. Each counterpart is the same instrument, this being one of the
counterparts.
Date:
______AUDREY SMITHFIELD MATTHEW SMITHFIELD
COMMONWEALTH OF MASSACHUSETTS
Norfolk, ss
Audrey Smithfield personally appeared before me and stated that she had read and signed the above Agreement of her own free act on this _____ day of 2021. ______
Notary Public My commission expires:
COMMONWEALTH OF MASSACHUSETTS Norfolk, ss
Matthew Smithfield personally appeared before me and stated that he had read and signed the above Agreement of his own free act on this _____ day of ______2021.
______
Notary Public
My commission expires:
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RESOURCES AND STANDARDS 1
Standards of Practice for Family and Divorce Mediation
Association for Conflict Resolution (a merged organization of AFM, CREnet and SPIDR)
Association for Conflict Resolution
1015 18th Street, NW, Suite 1150 Washington, DC 20036
phone: 202.464.9700 fax: 202.464.9720 [email protected]
ACR Board Adopts Model Standards of Practice for Family and Divorce Mediation
In April, 2002, based on the recommendation of the Family Section Advisory Council, the ACR Board adopted the Model Standards of Practice for Family and Divorce Mediation (the Standards) developed by the Symposium on Standards of Practice in August 2000 as the standards of practice for family and divorce mediators who are members of ACR. These standards replace the Standards that the Academy of Family Mediators (AFM) had adopted, which were developed in 1984.
The Standards incorporate much of the best of the previous standards, and update them to include topics such as domestic violence and child abuse. In addition, the Standards address the issue of the best interests of the children and how mediation can help parents to address them in divorce.
The Symposium, which developed the Standards, included representatives from Academy of Family Mediators (AFM), Association of Family Courts and Community Professionals (AFCC), American Bar Association (ABA) Family Section, and other national, state and regional organizations. The Standards represented a consensus of the best suggestions made over a period of two years in which the Symposium met to develop them.
The Standards had previously been adopted by the ABA Family Section and by AFCC, as well as several state mediation organizations. The adoption of these standards by ACR rounds out the trio of major national organizations whose members are family and divorce mediators.
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The General Standards
STANDARD I: A family mediator shall recognize that mediation is based on the principle of self- determination by the participants.
STANDARD II: A family mediator shall be qualified by education and training to undertake the mediation.
STANDARD III: A family mediator shall facilitate the participants' understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.
STANDARD IV: A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants.
STANDARD V: A family mediator shall fully disclose and explain the basis of any compensation, fees and charges to the participants.
STANDARD VI: A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.
STANDARD VII: A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.
STANDARD VIII: A family mediator shall assist participants in determining how to promote the best interests of children.
STANDARD IX: A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.
STANDARD X: A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.
STANDARD XI: A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reason.
STANDARD XII: A family mediator shall be truthful in the advertisement and solicitation for
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mediation.
STANDARD XIII: A family mediator shall acquire and maintain professional competence in mediation. Overview and Definitions
Family and divorce mediation ("family mediation" or "mediation") is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants' voluntary agreement. The family mediator assists communication, encourages understanding and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions and reach their own agreements.
Family mediation is not a substitute for the need for family members to obtain independent legal advice or counseling or therapy. Nor is it appropriate for all families. However, experience has established that family mediation is a valuable option for many families because it can:
• increase the self-determination of participants and their ability to communicate; • promote the best interests of children; and • reduce the economic and emotional costs associated with the resolution of family disputes.
Effective mediation requires that the family mediator be qualified by training, experience and temperament; that the mediator be impartial; that the participants reach their decisions voluntarily; that their decisions be based on sufficient factual data; that the mediator be aware of the impact of culture and diversity; and that the best interests of children be taken into account. Further, the mediator should also be prepared to identify families whose history includes domestic abuse or child abuse.
These Model Standards of Practice for Family and Divorce Mediation ("Model Standards") aim to perform three major functions: 1. to serve as a guide for the conduct of family mediators; 2. to inform the mediating participants of what they can expect; and 3. to promote public confidence in mediation as a process for resolving family disputes.
The Model Standards are aspirational in character. They describe good practices for family mediators. They are not intended to create legal rules or standards of liability.
The Model Standards include different levels of guidance: • Use of the term "may" in a Standard is the lowest strength of guidance and indicates a practice that the family mediator should consider adopting but which can be deviated from in the exercise of good professional judgment.
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• Most of the Standards employ the term "should" which indicates that the practice described in the Standard is highly desirable and should be departed from only with very strong reason. • The rarer use of the term "shall" in a Standard is a higher level of guidance to the family mediator, indicating that the mediator should not have discretion to depart from the practice described.
Standard I
A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.
A. Self-determination is the fundamental principle of family mediation. The mediation process relies upon the ability of participants to make their own voluntary and informed decisions. B. The primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of others and to facilitate agreement among the participants. C. A family mediator should inform the participants that they may seek information and advice from a variety of sources during the mediation process. D. A family mediator shall inform the participants that they may withdraw from family mediation at any time and are not required to reach an agreement in mediation. E. The family mediator's commitment shall be to the participants and the process. Pressure from outside of the mediation process shall never influence the mediator to coerce participants to settle.
Standard II
A family mediator shall be qualified by education and training to undertake the mediation.
A. To perform the family mediator's role, a mediator should: 1. have knowledge of family law; 2. have knowledge of and training in the impact of family conflict on parents, children and other participants, including knowledge of child development, domestic abuse and child abuse and neglect; 3. have education and training specific to the process of mediation; 4. be able to recognize the impact of culture and diversity. B. Family mediators should provide information to the participants about the mediator's relevant training, education and expertise.
Standard III
A family mediator shall facilitate the participants' understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.
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A. Before family mediation begins a mediator should provide the participants with an overview of the process and its purposes, including: 1. informing the participants that reaching an agreement in family mediation is consensual in nature, that a mediator is an impartial facilitator, and that a mediator may not impose or force any settlement on the parties; 2. distinguishing family mediation from other processes designed to address family issues and disputes; 3. informing the participants that any agreements reached will be reviewed by the court when court approval is required; 4. informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process; 5. advising the participants, in appropriate cases, that they can seek the advice of religious figures, elders or other significant persons in their community whose opinions they value; 6. discussing, if applicable, the issue of separate sessions with the participants, a description of the circumstances in which the mediator may meet alone with any of the participants, or with any third party and the conditions of confidentiality concerning these separate sessions; 7. informing the participants that the presence or absence of other persons at a mediation, including attorneys, counselors or advocates, depends on the agreement of the participants and the mediator, unless a statute or regulation otherwise requires or the mediator believes that the presence of another person is required or may be beneficial because of a history or threat of violence or other serious coercive activity by a participant. 8. describing the obligations of the mediator to maintain the confidentiality of the mediation process and its results as well as any exceptions to confidentiality; 9. advising the participants of the circumstances under which the mediator may suspend or terminate the mediation process and that a participant has a right to suspend or terminate mediation at any time. B. The participants should sign a written agreement to mediate their dispute and the terms and conditions thereof within a reasonable time after first consulting the family mediator. C. The family mediator should be alert to the capacity and willingness of the participants to mediate before proceeding with the mediation and throughout the process. A mediator should not agree to conduct the mediation if the mediator reasonably believes one or more of the participants is unable or unwilling to participate. D. Family mediators should not accept a dispute for mediation if they cannot satisfy the expectations of the participants concerning the timing of the process.
Standard IV
A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express
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agreement of the participants.
A. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual. B. Conflict of interest means any relationship between the mediator, any participant or the subject matter of the dispute, that compromises or appears to compromise the mediator's impartiality. C. A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial. D. A family mediator should identify and disclose potential grounds of bias or conflict of interest upon which a mediator's impartiality might reasonably be questioned. Such disclosure should be made prior to the start of a mediation and in time to allow the participants to select an alternate mediator. E. A family mediator should resolve all doubts in favor of disclosure. All disclosures should be made as soon as practical after the mediator becomes aware of the bias or potential conflict of interest. The duty to disclose is a continuing duty. F. A family mediator should guard against bias or partiality based on the participants' personal characteristics, background or performance at the mediation. G. A family mediator should avoid conflicts of interest in recommending the services of other professionals. H. A family mediator shall not use information about participants obtained in a mediation for personal gain or advantage. I. A family mediator should withdraw pursuant to Standard IX if the mediator believes the mediator's impartiality has been compromised or a conflict of interest has been identified and has not been waived by the participants.
Standard V
A family mediator shall fully disclose and explain the basis of any compensation, fees and charges to the participants.
A. The participants should be provided with sufficient information about fees at the outset of mediation to determine if they wish to retain the services of the mediator. B. The participants' written agreement to mediate their dispute should include a description of their fee arrangement with the mediator. C. A mediator should not enter into a fee agreement that is contingent upon the results of the mediation or the amount of the settlement. D. A mediator should not accept a fee for referral of a matter to another mediator or to any other person. E. Upon termination of mediation a mediator should return any unearned fee to the participants.
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Standard VI
A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.
A. The mediator should facilitate full and accurate disclosure and the acquisition and development of information during mediation so that the participants can make informed decisions. This may be accomplished by encouraging participants to consult appropriate experts. B. Consistent with standards of impartiality and preserving participant self-determination, a mediator may provide the participants with information that the mediator is qualified by training or experience to provide. The mediator shall not provide therapy or legal advice. C. The mediator should recommend that the participants obtain independent legal representation before concluding an agreement. D. If the participants so desire, the mediator should allow attorneys, counsel or advocates for the participants to be present at the mediation sessions. E. With the agreement of the participants, the mediator may document the participants' resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.
Standard VII
A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants. A. The mediator should discuss the participants' expectations of confidentiality with them prior to undertaking the mediation. The written agreement to mediate should include provisions concerning confidentiality.
B. Prior to undertaking the mediation the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting.
C. As permitted by law, the mediator shall disclose a participant's threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon.
D. If the mediator holds private sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon prior to the sessions.
E. If subpoenaed or otherwise noticed to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.
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Standard VIII
A family mediator shall assist participants in determining how to promote the best interests of children.
A. The mediator should encourage the participants to explore the range of options available for separation or post divorce parenting arrangements and their respective costs and benefits. Referral to a specialist in child development may be appropriate for these purposes. The topics for discussion may include, among others: 1. information about community resources and programs that can help the participants and their children cope with the consequences of family reorganization and family violence; 2. problems that continuing conflict creates for children's development and what steps might be taken to ameliorate the effects of conflict on the children; 3. development of a parenting plan that covers the children's physical residence and decision- making responsibilities for the children, with appropriate levels of detail as agreed to by the participants; 4. the possible need to revise parenting plans as the developmental needs of the children evolve over time; and 5. encouragement to the participants to develop appropriate dispute resolution mechanisms to facilitate future revisions of the parenting plan. B. The mediator should be sensitive to the impact of culture and religion on parenting philosophy and other decisions. C. The mediator shall inform any court-appointed representative for the children of the mediation. If a representative for the children participates, the mediator should, at the outset, discuss the effect of that participation on the mediation process and the confidentiality of the mediation with the participants. Whether the representative of the children participates or not, the mediator shall provide the representative with the resulting agreements insofar as they relate to the children. D. Except in extraordinary circumstances, the children should not participate in the mediation process without the consent of both parents and the children's court-appointed representative. E. Prior to including the children in the mediation process, the mediator should consult with the parents and the children's court-appointed representative about whether the children should participate in the mediation process and the form of that participation. F. The mediator should inform all concerned about the available options for the children's participation (which may include personal participation, an interview with a mental health professional, the mediator interviewing the child and reporting to the parents, or a videotaped statement by the child) and discuss the costs and benefits of each with the participants.
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Standard IX
A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.
A. As used in these Standards, child abuse or neglect is defined by applicable state law. B. A mediator shall not undertake a mediation in which the family situation has been assessed to involve child abuse or neglect without appropriate and adequate training. C. If the mediator has reasonable grounds to believe that a child of the participants is abused or neglected within the meaning of the jurisdiction's child abuse and neglect laws, the mediator shall comply with applicable child protection laws. 1. The mediator should encourage the participants to explore appropriate services for the family. 2. The mediator should consider the appropriateness of suspending or terminating the mediation process in light of the allegations.
Standard X
A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.
A. As used in these Standards, domestic abuse includes domestic violence as defined by applicable state law and issues of control and intimidation. B. A mediator shall not undertake a mediation in which the family situation has been assessed to involve domestic abuse without appropriate and adequate training. C. Some cases are not suitable for mediation because of safety, control or intimidation issues. A mediator should make a reasonable effort to screen for the existence of domestic abuse prior to entering into an agreement to mediate. The mediator should continue to assess for domestic abuse throughout the mediation process. D. If domestic abuse appears to be present the mediator shall consider taking measures to insure the safety of participants and the mediator including, among others: 1. establishing appropriate security arrangements; 2. holding separate sessions with the participants even without the agreement of all participants; 3. allowing a friend, representative, advocate, counsel or attorney to attend the mediation sessions; 4. encouraging the participants to be represented by an attorney, counsel or an advocate throughout the mediation process; 5. referring the participants to appropriate community resources; 6. suspending or terminating the mediation sessions, with appropriate steps to protect the safety of the participants. E. The mediator should facilitate the participants' formulation of parenting plans that protect the physical safety and psychological well-being of themselves and their children.
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Standard XI
A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reason.
A. Circumstances under which a mediator should consider suspending or terminating the mediation, may include, among others: 1. the safety of a participant or well-being of a child is threatened; 2. a participant has or is threatening to abduct a child; 3. a participant is unable to participate due to the influence of drugs, alcohol, or physical or mental condition; 4. the participants are about to enter into an agreement that the mediator reasonably believes to be unconscionable; 5. a participant is using the mediation to further illegal conduct; 6. a participant is using the mediation process to gain an unfair advantage; 7. if the mediator believes the mediator's impartiality has been compromised in accordance with Standard IV. B. If the mediator does suspend or terminate the mediation, the mediator should take all reasonable steps to minimize prejudice or inconvenience to the participants which may result.
Standard XII
A family mediator shall be truthful in the advertisement and solicitation for mediation.
A. Mediators should refrain from promises and guarantees of results. A mediator should not advertise statistical settlement data or settlement rates. B. Mediators should accurately represent their qualifications. In an advertisement or other communication, a mediator may make reference to meeting state, national or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been duly granted the requisite status.
Standard XIII
A family mediator shall acquire and maintain professional competence in mediation.
A. Mediators should continuously improve their professional skills and abilities by, among other activities, participating in relevant continuing education programs and should regularly engage in self-assessment. B. Mediators should participate in programs of peer consultation and should help train and mentor the work of less experienced mediators. C. Mediators should continuously strive to understand the impact of culture and diversity on the mediator's practice.
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Appendix Special Policy Considerations for State Regulation of Family Mediators and Court Affiliated Programs
The Model Standards recognize the National Standards for Court Connected Dispute Resolution Programs (1992). There are also state and local regulations governing such programs and family mediators. The following principles of organization and practice, however, are especially important for regulation of mediators and court-connected family mediation programs. They are worthy of separate mention.
A. Individual states or local courts should set standards and qualifications for family mediators including procedures for evaluations and handling grievances against mediators. In developing these standards and qualifications, regulators should consult with appropriate professional groups, including professional associations of family mediators.
B. When family mediators are appointed by a court or other institution, the appointing agency should make reasonable efforts to insure that each mediator is qualified for the appointment. If a list of family mediators qualified for court appointment exists, the requirements for being included on the list should be made public and available to all interested persons.
C. Confidentiality should not be construed to limit or prohibit the effective monitoring, research or evaluation of mediation programs by responsible individuals or academic institutions provided that no identifying information about any person involved in the mediation is disclosed without their prior written consent. Under appropriate circumstances, researchers may be permitted to obtain access to statistical data and, with the permission of the participants, to individual case files, observations of live mediations, and interviews with participants.
Only the Model Standards, not the Commentary, were approved by the American Bar Association in February 2001.
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STANDARDS OF PRACTICE FOR SOCIAL WORK MEDIATORS
National Association of Social Workers 750 First Street, NE, Suite 700 Washington, DC 20002-4241 202-408-8600
INTRODUCTION
Social workers sit at the center of many social conflicts. In their role as facilitator of person-to- person, person-to-group, person-to-institution, and institution-to-institution interactions, social workers face the issue of conflict resolution as a normal part of their professional activities. The role of social worker in these conflicts has been variously described as advocate, negotiator, and mediator.
Increasingly, social workers and other professionals have chosen or been asked to play the formal role of mediator, that is, a neutral third party who helps people or groups in conflict arrive at mutually acceptable solutions. Social workers mediate issues such as divorce and post- divorce disputes, parent-child conflicts, child welfare issues, and disagreements concerning care of the elderly. In addition, they mediate neighborhood disputes, community conflicts, and personnel issues. As the use of mediators in a variety of circumstances has increased, a concomitant development has taken place regarding the conceptual framework and skills set within which mediators function. Mediation increasingly is viewed as a powerful intervention tool distinct from albeit informed by-other approaches to client services.
These developments have led the National Association of Social Workers (NASW) to develop and adopt a set of standards that are intended to guide the practice of social workers who function as neutral third parties. These standards were developed to complement the NASW Code of Ethics and to be consistent with the standards of major mediation organizations.
Considered desirable for all social work mediators, these standards are designed to do the following:
. promote the practice of social work mediation . provide direction and professional support to social work mediators . inform consumers, employers, and referral sources by providing them with a set of expectations for social worker mediators.
DEFINITION OF MEDIATION
Mediation is an approach to conflict resolution in which a mutually acceptable, impartial third party helps the participants negotiate a consensual and informed settlement. In mediation, decision making rests with the parties. Reducing the obstacles to communication, maximizing
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the exploration of alternatives, and addressing the needs of those who are involved or affected by the issues under discussion are among the mediator’s responsibilities.1
The mediator is responsible to the system of people or groups involved in a decision-making process. The mediator must provide this system with the structure and tools to make mutually acceptable decisions under difficult circumstances. In this sense, the mediator’s role is to empower the system so that it does not have to resort to outside parties, such as the courts or arbitrators, to make the decision.
PRINCIPLES GUIDING PRACTICE STANDARDS FOR SOCIAL WORK MEDIATORS
The following principles govern the practice standards for social work mediators:
2 . Mediation is a method of social work practice. . The mediator is responsible to the system of parties involved in the dispute or decision- making process, rather than to any single party or client. . These standards are to be interpreted within the ethical base and values explicated in the NASW Code of Ethics. . Mediators should be familiar with and trained in the theory and practice of mediation. In addition to social work education, the social work mediator needs specific training and practice experience in mediation and conflict resolution. . Social work mediators should be accountable, both to the client and to colleagues, for the professional and ethical application of their skills and service delivery. . Because mediation is a growing and developing field, these standards should be reviewed regularly to incorporate new developments in the theory and practice of mediation.
STANDARDS FOR THE PRACTICE OF MEDIATION BY SOCIAL WORKERS
Standard 1: Social work mediators shall function within the ethics and stated standards and accountability procedures of the social work profession.
Interpretation
All social workers have a fourfold responsibility: to clients, to the profession, to self, and to society. Social work mediators should identify themselves as members of the social work profession. NASW members shall be familiar with and adhere to the NASW Code of Ethics and shall cooperate fully and in a timely fashion with the adjudication procedures of the committee of inquiry, peer review, and appropriate state regulatory boards. They should be aware of and adhere to relevant stated professional standards for social work practices.
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Standard 2: Social work mediators should remain impartial and neutral toward all parties and issues in a dispute.
Interpretation
Social work mediators should enter into a dispute as a mediator only when they can maintain a stance of impartiality and neutrality. They should inform all involved parties of any development or circumstances that might contribute to the actuality or appearance of bias or favoritism, or that might interfere in any way with their impartial and neutral role. Impartiality refers to the mediator’s attitudes toward the issue and people involved. An impartial mediator acts without bias in word and action and is committed to helping all parties rather than to advocating for any single person.
Neutrality relates to the mediator’s relationship to the parties and the issues involved. A mediator should have no relationship with parties or vested interests in the substantive outcome that might interfere or appear to interfere with the ability to function in a fair, unbiased, and impartial manner. Any such relationship must be disclosed to the parties before the start of mediation or as soon as knowledge of such a relationship occurs. If any of the parties or the mediator feels that such a relationship has a potential to bias the mediator’s performance, the mediator should disqualify himself or herself from acting as a neutral third party.
It is important that the mediator continue to maintain a neutral stance after the mediation is completed to avoid casting doubt on the legitimacy of the mediation that occurred and to ensure continued availability for future interventions as appropriate.
Standard 3: The social work mediator shall not reveal to outside parties any information received during the mediation process.
Interpretation
As with the success of other social work methods, the success of mediation depends largely on the confidentiality of the process. The mediator should not reveal to other parties any information received during private sessions or caucuses without the express permission of the parties from whom the mediator received the information.
Clients and mediators must be aware that there are legal and ethical circumstances in which confidentiality cannot be maintained. These circumstances include but are not limited to the legally mandated requirement to report suspicion of child abuse or a suspicion of bodily harm or violence to another person. Mediators should be aware of any legal or statutory limits placed on mediation in the jurisdiction in which they practice. Exceptions to confidentiality and any other exceptions that may arise because of the circumstances, legal framework, or institutional structure within which mediation
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occurs should be disclosed to the parties before or during their initial meeting with the mediator.
The mediator should inform the parties of the possibility that the mediator might be compelled to testify in court or in other ways reveal information gathered during the mediation process. Confidentiality applies to the mediator and the mediator’s records.
Standard 4: Social work mediators shall assess each conflict and shall proceed only in those circumstances in which mediation is an appropriate procedure.
Interpretation
Mediation is not appropriate for all types of conflict. Mediators should assess whether each party has the capacity to engage in mediation and has the support necessary to be an effective participant. They should inform parties about alternative dispute resolution processes that are available to them and discuss the appropriateness of mediation at the beginning of the intervention.
If mediation is to be effective, parties at a minimum must have the ability to negotiate for themselves, to assess the information relevant to the case, and to understand the implications of the various agreements being considered. Furthermore, the mediation process should address a potential imbalance of power that might exist between the parties. In those situations in which legal advice or other expert consultation is necessary or would serve parties better, the mediator should make the appropriate referrals. The role of mediator should not be confused with that of an attorney. Psychotherapist or evaluator, even if the mediator also has expertise in one or more of those areas.
Standard 5: The social work mediator shall seek at all times to promote cooperation, to prevent the use of coercive tactics, to foster good-faith bargaining efforts, and to ensure that all agreements are arrived at on a voluntary and informed basis.
Interpretation
Good-faith negotiation means that the parties are making an honest (even if uncertain) attempt to arrive at an agreement, that they are not using the process for destructive purposes, that they are sharing relevant information in a frank and truthful manner, and that they are not using coercive or dishonest bargaining tactics. Although it is not always possible to ensure that all parties are negotiating in good faith, it is the mediator’s responsibility to promote and expect good-faith behavior. The mediator should not allow coercive or bad-faith tactics to continue during the mediation process. If the mediator is aware that these tactics are being used and cannot stop their use, the mediation process should be discontinued.
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Standard 6: The social work mediator shall recommend termination of the process when it appears that it is no longer in the interest of the parties to continue it.
Interpretation
Mediation should not be used to prolong a dispute unnecessarily or to prevent the use of a more appropriate conflict resolution procedure. Occasionally, it is in the interest of one party to prevent an agreement from being reached. At other times parties are simply unable to agree, and they reach an impasse. The mediator should not continue with the mediation if these situations occur. The mediator should, however, exert every effort to promote the successful conclusion of mediation and should not abandon the effort prematurely.
Standard 7: The social work mediator is responsible for helping the parties arrive at a clearly stated, mutually understood, and mutually acceptable agreement.
Interpretation
It is the mediator’s responsibility to conduct the mediation process, not to promote any particular substantive outcome. Frequently, the solution that the mediator believes best meets the interests of the parties is not the one that the parties select. The mediator’s role is to conduct a fair process, not to promote a particular outcome. The mediator should try to ensure that the agreement, whether partial or full, reflects a fair and good- faith negotiation effort. If the mediator feels that the agreement is illegal, grossly unfair to a participating or unrepresented party, the result of bad-faith bargaining, or based on inaccurate information, the mediator has the obligation to make this known to the parties involved and to try to correct the problem. When parties agree to an unconscionable outcome, an illegal agreement, or one based on dishonesty or misrepresentation, mediators should disassociate themselves from the agreement in accordance with standards of confidentiality.
Standard 8: The social work mediator shall develop an unbiased written agreement that specifies the issues resolved during the course of mediation.
Interpretation
The written agreements should, to the extent possible, be in the language of the parties themselves, and should be clearly understood by them. The actual determination of whether an agreement is legally binding constitutes a legal judgment. However, it is important for parties to know that any agreement may be legally binding and should not be finalized without the appropriate legal advice.
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Standard 9: Social work mediators shall have training in both the procedural and substantive aspects of mediation.
Interpretation
Social workers should mediate disputes only in those areas for which they are qualified by training or experience. If they have no substantive knowledge in a particular area, they should obtain it, work with a qualified co-mediator, have appropriate consultation, or refer the dispute elsewhere. Mediators should obtain formal training in the mediation process, and beginning mediators should work under a qualified supervisor. Formal training is currently available through professional seminars and workshops and university-based programs. The standards for training obtained by social work mediators should be in keeping with those currently accepted by the leading professional organizations of mediators in the area in which the social worker is functioning. Social work mediators should upgrade their skills and knowledge in the field of conflict resolution through continuing education programs and participation in relevant professional conferences and seminars.
Occasionally, mediators will be asked to mediate a dispute in which they do not have substantive expertise. If a mediator skilled in that specialty is not available, the mediator either should work with a co-mediator or consultant who is familiar with the substantive area or take the time to become familiar enough with the area to be able to help parties explore their interests and options in an informed manner.
Standard 10: A social work mediator shall have a clearly defined and equitable fee structure.
Interpretation The fee structure should be presented to all parties at the outset of the mediation. Fees should reflect standards of impartiality and neutrality. All compensation mediators receive for their services should be known to all involved parties, and mediators should accept no side payments or fees based on the outcome of the mediation process.
If at all possible, either a neutral party or agency should cover the cost of mediation or the cost should be split equitably (although not necessarily equally) among the parties. If one party is supposed to pay the entire fee, this should be known and agreed to by all parties at the outset. Under no circumstances should the fee structure give the mediator a vested interest in a particular outcome. Fees should therefore not be contingent on the nature of the agreement or even on the achievement of an agreement.
Standard 11: The mediator shall not use any information obtained during the mediation process for personal benefit or for the benefit of any group or organization with which the mediator is associated.
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Interpretation Mediators are often given access to information that could be used for personal or organizational benefit. It is inappropriate for the mediator to compromise the mediation process by using this information outside the mediation process.
Standard 12: Social work mediators shall be prepared to work collaboratively as appropriate with other professionals and in conformance to the philosophy of social work and mediation.
Interpretation The mediator should not separately mediate any dispute that already is being mediated. If another mediator has been involved in the case, the mediator should ascertain that this relationship has been terminated before agreeing to become involved. In cases in which a co-mediation procedure is being used, all the mediators involved should keep each other informed about activities and developments relevant to the case, and the clients should know at the outset that this information sharing will occur. Co-mediators should handle any disagreements they may have in a collaborative manner. Mediators should respect the involvement of legal, mental health, social services, and other professionals involved in the dispute or with the parties and should work with them in a cooperative and respectful manner. Notes 1Adapted from the Model Standards of Practice for Family and Divorce Mediators. (Madison, Wisconsin: Association of Family Conciliation Courts, 1984).
2Method is used to identify specific types of intervention. See Robert L. Barker, The Social Work Dictionary, 2nd ed. (Silver Spring, MD: NASW Press, 1991), p. 144, the term "methods in social work."
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MEDIATOR’S PROFESSIONAL LIABILITY INSURANCE
Complete Equity Markets, Inc. 1098 South Milwaukee Avenue Wheeling, Illinois 60090-6398 Telephone: (800) 323-6234 In Illinois: (847) 541-0900 Fax: (847) 541-0444
PROFESSIONAL LIABILITY INSURANCE FOR THE ARBITRATOR OR MEDIATOR
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Limits Of Liability
Four Limits of Liability are available:
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For More Information:
To request additional information about our Professional Liability Insurance coverage for Arbitrators and Mediators call 800-323-6234.
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HELPFUL WEBSITES
www.afccnet.org Association of Family and Conciliation Courts (AFCC)
www.maafcc.org Massachusetts Chapter of AFCC
www.mcfm.org Massachusetts Council on Family Mediation (MCFM)
www.acrnet.org Association for Conflict Resolution (ACR)
www.neacr.org New England Chapter of ACR (NE-ACR)
www.highconflictinstitute.com Education and resources for high conflict disputes
www.meetways.com Find a halfway point between two locations
www.familylawsoftware.com Family Law Software
www.crinfo.org The Conflict Resolution Information Source
www.divorcesource.com Resource for divorce related information
http://levinedisputeresolution.com/divorce-mediation-blog Levine DR divorce mediation blog
www.mass.gov/portal/ Massachusetts listing of Courts
www.uptoparents.org Interactive website for divorcing and divorced parents
MASSACHUSETTS PROBATE AND FAMILY COURT DEPARTMENTS
Barnstable Probate and Family Court Department 508-375-6725 Berkshire Probate and Family Court Department 413-442-6941 Bristol Probate and Family Court Department 508-672-4669 Dukes Probate and Family Court Department 508-627-4703 Essex Probate and Family Court Department 978-744-1020 Franklin Probate and Family Court Department 413-774-7011 Hampden Probate and Family Court Department 413-748-7740 Hampshire Probate and Family Court Department 413-586-8500 Middlesex Probate and Family Court Department 617-768-5850 Nantucket Probate and Family Court Department 508-228-2669 Norfolk Probate and Family Court Department 781-830-1200 Plymouth Probate and Family Court Department 508-897-5400 Suffolk Probate and Family Court Department 617-788-8300 Worcester Probate and Family Court Department 508-831-2200
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RECOMMENDED READINGS
Below is a listing of just a small number of articles on various topics of interest to divorce and family mediators. These materials are in addition to the books and articles footnoted or referenced in the manual.
Family Systems & Therapy
Joe Giordano and Mary Ann Carini-Giordano, “Ethnic Dimensions in Family Treatment,” Integrating Family Therapy: Handbook of Family Psychology and Systems Theory, Ed. Richard H. Mikesell, Don-David Lusterman, and Susan H. McDaniel, American Psychological Association, Washington, DC.
Thomas W. Blume, Update on Systemic Practice, Mediation Quarterly 11(3), Winter 1993, pp. 195-197.
Marian Roberts, “Systems or Selves? Some Ethical Issues in Family Mediation,” Mediation Quarterly, 10(1) Fall 1992, pp. 3-19.
John M. Haynes, “Mediation and Therapy: An Alternative View,” Mediation Quarterly, 10(1), Fall 1992, pp. 21-33.
Richard D. Mathis, Lynelle C. Yingling, “Recommendations for Divorce Mediation with Chaotically Adaptable Family Systems,” Mediation Quarterly, 8(2), Winter 1990, pp. 125-135.
Michael Meltsner, “The Jagged Line Between Mediation and Couples Therapy, “ Negotiation Journal, July 1993, pp. 261-269.
Ethics, Neutrality
Alison Taylor, “Concepts of Neutrality in Family Mediation: Contexts, Ethics, Influence and Transformative Process,” Mediation Quarterly 14(3) Spring 1997, pp. 215-236.
Robert A. deMayo, “Practical and Ethical Concerns in Divorce Mediation: Attending to Emotional Factors Affecting Mediator Judgment,” Mediation Quarterly 13(3) Spring 1996, pp. 217-227.
Orna Cohen, Naomi Dattner, Ahron Luxenburg, “The Limits of the Mediator’s Neutrality,” Mediation Quarterly, 16(4), Summer 1999, pp 341-349.
Kevin Gibson, Leigh Thompson, and Max Braverman, “Shortcomings of Neutrality in Mediation: Solutions Based on Rationality,” Negotiation Journal, 12(1), January 1996, pp. 69-80.
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Power, Gender, Diversity, Cultural Issues
Desmond Ellis and Laurie Wight, “Theorizing Power in Divorce Negotiations: Implications for Practice,” Mediation Quarterly, 15(3), Spring 1998, pp. 227-244.
Joan B. Kelly, “Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention,” Mediation Quarterly, 13(2), Winter 1995, pp. 85-98.
Robert Dingwall, David Greatbatch, Lucia Ruggerone, “Gender and Interaction in Divorce Mediation, Mediation Quarterly, 15(4), Summer 1998, pp. 277-285.
Sheila Heen, Defining Gender Differences: Is the Proof in the Process?” Negotiation Journal, 12(1), January 1996, pp. 9-17.
Allan Barsky, David Este, Don Collins, “Cultural Competence in Family Mediation,” Mediation Quarterly, 13(3), Spring 1996, p 167.
Howard H. Irving, Michael Benjamin, Jose San-Pedro, “Family Mediation and Cultural Diversity: Mediating with Latino Families,” Mediation Quarterly, 16(4), Summer 1999, pp. 325-339.
Howard Gadlin, “Conflict Resolution, Cultural Differences, and the Culture of Racism,” Negotiation Journal, January 1994.
Suzanne Bryant, “Mediation for Lesbian and Gay Families,” Mediation Quarterly, 9(4), Summer 1992, pp. 391-395.
Annette Townley, “The Invisible –ism: Heterosexism and the Implications for Mediation,” Mediation Quarterly, 9(4), Summer 1992, pp. 397-400.
A.P. Buxton, “The Other Side of the Closet, IBS Press, Inc., Santa Monica, CA, 1991
Alan Campbell, “When One Parent is Gay: A Cultural Perspective,” Mediation Quarterly, 14(1),1996.
Domestic Violence
Jessica Pearson, “Mediating When Domestic Violence Is a Factor: Policies and Practices in Court-Based Divorce Mediation Programs,” Mediation Quarterly, 14(4), Summer 1997, pp. 319- 335.
Hara Estroff Marano, “Inside the Heart of Marital Violence, “ Psychology Today, Nov-Dec 1993 v26 n6 p 48(10).
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Cosandra McNeal and Paul R. Amato, “Parents’ Marital Violence: Long-Term Consequences for Children, Journal of Family Issues, March 1998 v18 n2 p123(17).
David B. Chandler, “Violence, Fear, and Communication: The Variable Impact of Domestic Violence on Mediation,” Mediation Quarterly, 7(4) Summer 1990, pp. 331-346
Skills and Strategies
William A. Donohue, Laura Drake, Anthony J. Roberto, “Mediator Issue Intervention Strategies: A Replication and Some Conclusions, Mediation Quarterly, 11(3), Spring 1994, pp. 261-274.
Children
Julie S. Linker, Arnold L. Stolberg, Robert G. Green, “Family Communication as a Mediator of Child Adjustment to Divorce,” Journal of Divorce & Remarriage, 19(1/2), 1999, pp. 83-97.
Victoria Lytle, “Kids and Divorce, NEA Today, Oct 1994 13(3) p11(1).
Peggy Beck, Nancee Biank, “Broadening the Scope of Divorce Mediation to Meet the Needs of Children,” Mediation Quarterly, 14(3), Spring 1997, pp. 179-199.
Dona T. Lansky, Leslie H. Swift, E. Elizabeth Manley, Amy Elmore, Christine Gerety, “The Role of Children in Mediation,” Mediation Quarterly, 14(2), Winter 1996, pp. 147-153.
Effects of Divorce
Karen Somary, Robert E. Emergy, “Emotional Anger and Grief in Divorce Mediation,” Mediation Quarterly, 8(3), Spring 1991, pp. 185-197.
Andrew J. Cherlin, Frank F. Furstenberg Jr., P. Lindsay Chase-Lansdale, Kathleen E. Kiernan, Philip K. Robins, Donna Ruane Morrison and Julien O. Teitler, “Longitudinal Studies on Effects of Divorce on Children in Great Britain and the United States,” Science, June 7, 1991, 252(5011) p 1386 (4).
Joseph Adelson, “Splitting Up,” Commentary, Sept. 1996, 102(3) p 63.
Journals for Mediation Practitioners
Conflict Resolution Quarterly, Jossey-Bass Publishers (by subscription or included with membership from the Association for Conflict Resolution – see ACR Membership Application Form)
Negotiation Journal, Kluwer Academic/Plenum Publishers, 212-620-8468
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Association for Conflict Resolution Family Section
Annotated Diversity Bibliography
Adams, Maurianne, Bell, Lee Anne and Griffin, Pat, Teaching for Diversity and Social Justice, Routledge, 1997.
This book includes model curriculum and exercises for diversity training programs on racism, sexism, heterosexism, anti-Semitism, ableism and classism.
Athar, Shahid, “Reflections of an American Muslim.” Internet at www.islam-usa.com/rl.html.
Information about the Muslim religion and culture.
Atkinson, Donald, Counseling American Minorities: Across-Cultural Perspective, Brown & Benchmark Publishers, 1992 (4th Ed.).
Discusses the development of cross-cultural competency programs and the definition of specific competencies trainees are expected to acquire. Proposes specific cross-cultural training goals and tasks for counselor training programs. Also, discusses counseling and intervention techniques that have been effective for counselors working with clients who are members of specific cultural groups.
Augsburger, David W., Conflict Mediation Across Cultures - Pathways and Patterns. Westminster/ John Knox Press, 1992.
Author explores the need for change in approach to dispute resolution to provide for an international understanding of conflict. Perceptions of conflict within traditional cultures and techniques for its resolution are compared to common mediation techniques.
Bailey, Sharon Perkins, “Diverse Traditions in Peacemaking Bibliography”, National Conference on Peacemaking and Conflict Resolution (NCPCR) in Association with Alliance of African / African American Peacemakers, 2000.
Bibliography of resources on communication, conflict resolution, culture and peacemaking for many cultural groups.
Barsky, Allan; Este, David and Collins, Don, “Cultural Competence in Family Mediation.” Mediation Quarterly 1996; 13 (3), 167.
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Cultural competence requires mediator creativity and changes in mediator’s attitude and behavior paired with a nonjudgmental approach. Findings of a study of mediation issues specific to Canadians of Vietnamese and Pakistani descent are presented.
Baytos, Lawrence M., Designing and Implementing Successful Diversity Programs. Prentice-Hall, 1995.
Author identifies the human tendency to prejudge those who are different and suggests that diversity training must identify these preconceptions and discuss the results of stereotyping. Effective diversity training includes exercises directed toward intellect, insight, and implementation.
Beer, Jennifer, The Mediator’s Handbook. 3rd. Ed., New Society Publishers, 1997.
Introductory text for mediators includes section on cultural factors that may impact mediation. Discusses the effect of mediation techniques, participant behavior, and variations in the meanings of certain behaviors in different cultures.
Blackwell, James E., The Black Community: Diversity and Unity, New York: Harper Collins, 1991.
Explores how the African-American community has been profoundly affected by the interaction of race, color and class, and has developed into a highly diversified community.
Blaustone, Beryl, “The Conflicts of Diversity, Justice, and Peace in the Theories of Dispute Resolution. A Myth: Bridge Makers Who Face the Great Mystery.” University of Toledo Law Review 1994; 25, 253.
Author created an engaging story (myth) to facilitate reflection and discussion on the issues of diversity, peace and justice in the practice of dispute resolution.
Bryant, Suzanne, “Mediation for Lesbian and Gay Families.” Mediation Quarterly 1992; 9 (4), 391.
Mediation within lesbian and gay families is a valuable dispute resolution option because it occurs outside the traditional legal system. Mediators must evaluate their own sensitivity to issues unique to gay and lesbian families and their understanding of such issues.
Butler, Fred D., “The Question of Race, Gender & Culture in Mediator Selection.” Dispute Resolution Journal 2001: 55-JAN, 36.
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A mediator who understands the cultural, racial or gender nuances of the case diated can give the parties an opportunity to resolve not just the issues that are on the table but also the underlying issues that may have created the dispute.
Campbell, Alan, “Mediation of Children’s Issues when One Parent is Gay: A Cultural Perspective.” Mediation Quarterly 1996; 14 (1), 79.
Mediators need to recognize the homosexual subculture as distinct from the heterosexual culture and be able to connect with the homosexual community. Cultural clash may occur when one party declares that he or she is homosexual. Mediators who encourage parties to develop understandings and break down stereotypes may be able to diminish the impact of this clash upon mediation.
Carr, Clay, “Diversity and Performance: A Shotgun Marriage?” Performance Improvement Quarterly 1993; 6 (4), 115.
Article discusses conditions under which the conflict inherent in the presence of diversity may benefit organizations.
Christiansen, Von J., “Ritual and Resolution: The Role of Reconciliation in the Mediation Process - Lessons from a Traditional Chinese Village.” Dispute Resolution Journal 1997; 52 (66) [Fall].
Describes elements of conciliation and reconciliation in mediation and need for mediator to gain trust of parties before this process can take place. Distinguishes mere settlement of issues from the resolution of underlying disputes.
Coker, Donna, “Enhancing Autonomy for Battered Women: Lessons from Navajo Peacemaking.” UCLA Law Review 1999; 47 (1).
Author explores the process of Navajo Peacemaking and argues that peacemaking may effectuate change in conditions that foster battering. Methods of dispute resolution should be assessed for this potential prior to use with battered women.
Delgado, Richard; Dunn, Chris; Brown, Pamela; Lee, Helena and Hubbert, David, “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution.” Wisconsin Law Review 1985; 1985 (1359).
Argues that informal methods of dispute resolution may place minority disputants at a greater disadvantage than do formal processes. Authors conclude that certain conditions must be met to decrease the potential for prejudice in mediation. Mediation for parties of unequal power or status is opposed.
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Dominguez, Jessica, “The Role of Latino Culture in Mediation of Family Disputes.” Journal of Legal Advocacy & Practice, 1999; 1 (154).
Article states that mediators must become multiculturally competent in order to be able to adequately address the issues of Latino participants in mediation. Mediators should gain familiarity with unique Latino cultural issues.
Duvall, Lynn, Respecting Our Differences: A Guide to Getting Along in a Changing World. Free Spirit Publishing, 1994.
A book on cultural sensitivity for older children and teens.
Felicio, Diane M. and Sutherland, Michelle, “Beyond the Dominant Narrative: Intimacy and Conflict in Lesbian Relationships.” Mediation Quarterly, 2001; 18 (4)
Relationship dynamics and issues that may be present in mediations with lesbians.
Fong, Rowena and Furuto, Sharlene, Culturally Competent Practice: Skills, Interventions and Evaluations. Allyn & Bacon, 2001.
Discussion about the cultures, values, and common challenges of African Americans, Latino/Hispanic Americans, First Nations Peoples and Asians and Pacific Islanders and techniques for a culturally competent social work practice with members of these groups.
Freshman, Clark, “Privatizing Same-Sex ‘Marriage’ Through Alternative Dispute Resolution: Community-Enhancing Versus Community-Enabling Mediation.” UCLA Law Review, 1997; 44, 1687.
Discusses benefits of mediation for same sex couples when the mediator is gay or lesbian. Describes tension between community enhancing mediation, which gives community a very strong role, and the passive neutrality of much mediation, which gives little room to notions of community and community values. Examples from the Jewish, Muslim and Native American included.
Garrett, Robert D., “Mediation in Native America.” Dispute Resolution Journal, 1994; 49 (38).
Discusses importance of consensus in Native American communities as a tool for dealing with the outside world. Article explores the longstanding history of mediation in Native American communities.
Goodmark, Leigh, “Alternative Dispute Resolution and the Potential for Gender Bias.” Judges’ Journal 2000 39 (2), 21.
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Article examines the potential for gender bias in mediation and how the attitudes of the participants can jeopardize the fairness of the mediation process unless they are acknowledged and addressed.
Grillo, Trina, “The Mediation Alternative: Process Dangers for Women.” Yale Law Journal, 1991; 100 (1545).
Dangers to women caused by mediation’s requirement of direct engagement with their adversary.
Gunning, Isabelle R., “Diversity Issues in Mediation: Controlling Negative Cultural Myths.” Journal of Dispute Resolution, 1995; 1995 (55).
Article acknowledges the potential for prejudice to flourish in mediation due to its informal processes. The author identifies techniques to reduce the potential impact of negative cultural myths.
Gunning, Isabelle R., “Mediation as an Alternative to Court for Lesbian and Gay Families: Some Thoughts on Douglas McIntyre’s Article.” Mediation Quarterly, 1995; 13 (1), 47.
Author discusses issues in mediating with gay and lesbian parties.
Helms, Janet E. and Cook, Donelda A., Using Race and Culture in Counseling and Psychotherapy: Theory and Process. Allyn & Bacon, 1999.
Techniques for becoming a race and culture-sensitive therapist, description of sociopolitical histories of original socioracial groups and culture-based socioracial groups, discussion of racial and cultural nuances, themes and dynamics in therapy and group interventions.
Hemphill, Helen and Haines, Ray, Discrimination, Harassment, and the Failure of Diversity Training – What to Do Now. Quorum Books, 1997.
The focus of diversity trainers on awareness, understanding and appreciating differences has not resulted in effective training. Author suggests that diversity training should focus on eliciting change in workplace behaviors.
Jandall, Ameena, “Understanding Islam and Muslims.” Internet http://www.cahro.org/html/decjan98-5.html.
Discussion of Muslim religion and culture.
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Julia, Maria, Constructing Gender: Multicultural Perspectives in Working with women. Wadsworth, 2000.
Describes culture, roles, values and common challenges of women living in the United States who are members of African-American, Amish, Appalachian, Arab, Hispanic, Jewish, Native American and Southeast Asian cultures.
Julia, Maria, Multicultural Awareness in the Health Care Professions, Allyn & Bacon, 1996.
Descriptions of cultural concepts of health and family, family roles, family structure, child rearing practices, and general cultural information about members of the African- American, Amish, Arab, Asian, Hispanic, Orthodox Jewish and Native American cultures.
Kivel, Paul, Uprooting Racism: How White People Can Work for Racial Justice, New Society Publishers, 1995.
Techniques and exercises to increase awareness and understanding of the dynamics and impact of racism.
Klugman, Julian, “Negotiating Agreements and Resolving Disputes Across Cultures.” Mediation Quarterly, 1992; 9 (4), 387.
Different mediation techniques may be necessary to work with different ethnic groups, and the approach of the mediator must be flexible and nonjudgmental. Article explores situations when race relation problems may be mediated.
Kochman, Thomas, Black and White Styles in Conflict. The University of Chicago Press, 1981.
Culturally distinct patterns of behavior in conflictual situations are explored. The point at which a discussion becomes a conflict in the mind of blacks and whites may be different. The author offers insight into patterns of dealing with intracultural and intercultural conflict.
Lambert, Jonamay and Myers, Selma, 50 Activities for Diversity Training. Human Resource Development Press, Inc, 1994.
Exercises for use in cultural competence training programs.
Lederach, John Paul, Preparing for Peace - Conflict Transformation Across Cultures. Syracuse University Press, 1995.
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Lederach urges that we reconsider our training techniques for working across and in diverse cultural settings and that we develop mediation models for specific cultures rather than merely transplanting North American conflict resolution techniques to other cultural settings.
LeResche, Diane, “Comparison of the American Mediation Process with a Korean-American Harmony Restoration Process.” Mediation Quarterly, 1992; 9 (4), 323.
Author provides a framework for comparing dispute resolution processes. Dispute resolution programs may be developed based upon a uniquely cultural view of conflict, and the goal of the process may vary among different cultures. Mediators must be aware of the differences in how conflict is valued in diverse cultures in order for the mediation process to be effective.
Mabry, Cynthia R, “African Americans Are Not Carbon Copies of White Americans - The Role of African American Culture in Mediation of Family Disputes.” 13 Ohio State Journal on Dispute Resolution 1998; 13 (405).
Author describes aspects of African American culture that may impact the parties’ positions in mediation and discusses attitudes about dispute resolution that may be held by African Americans parties.
McIntyre, Douglas, “Gay Parents and Child Custody: A Struggle under the Legal System.” Mediation Quarterly 1994; 12 (2), 135.
Issues for mediators working with gay and lesbian parties.
Meierding, Nina, “The Impact of Cultural and Religious Diversity in the Divorce Mediation Process.” Mediation Quarterly 1992; 9 (4), 297.
Mediators must gain an understanding of the religious and cultural dynamics impacting a divorcing couple. Parties’ willingness to mediate may be influenced by their cultural and religious frames of reference. Mediators need to consider how culturally bound issues impact the mediation process.
Myers, Selma and Lambert, Jonamay, Diversity Icebreakers: A Guide for Diversity Training. Amherst Educational Publishing, 1994.
This guide contains widely applicable activities structured into four sections: introductions, personal awareness, perception, stereotypes and assumptions.
Myers, Selma and Filner, Barbara, Mediation Across Cultures - A Handbook About Conflict & Culture. San Diego Mediation Center, 1993.
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Authors advocate the use of mediation in cross-cultural disputes. Culture has an impact on mediation, and mediators can use mediation as a forum for increased cultural understanding if they have the skills to prevent culture from becoming a hurdle. Includes quizzes and conflict scenarios that can be used for training.
Okayama, Chet M.; Furuto, Sharlene B.C.L.; and Edmondson, James, “Components of Cultural Competence: Attitudes, Knowledge, and Skills.” Culturally Competent Practice: Skills, Interventions and Evaluations, R. Fong and S. Furuto, Eds. Allyn & Bacon, 2001.
Explores attitudes, knowledge, and skills of cultural competence needed to work effectively with multicultural clients in social work practice. Maintaining cultural competence requires an openness to build relationships while acquiring new knowledge and skills.
Ottavi, Thomas M.; Pope-Davis, Donald B.; and Dings, Jonathan G., “Relationship Between White Racial Identity Attitudes and Self-Reported Multicultural Counseling Competencies.” Journal of Counseling Psychology 1994; 41 (2), 149.
The hypothesis that racial identity development may influence multicultural competency is tested. A number of variables are determined to be relevant in investigating racial identity attitudes.
Overmyer Day, Leslie E., “The Pitfalls of Diversity Training.” Training & Development 1995, December, 25.
Many of the problems common to diversity training are identified as stemming from disagreement as to how diversity should be defined.
Pope-Davis, Donald B. and Coleman, Hardin L. K., Multicultural Counseling Competencies: Assessment, Education and Training, and Supervision. Sage Publications, 1997.
Discusses the development of multicultural education and training programs for counselors and assessment tools to measure multicultural competence of counselors.
Rendon, Josefina Muniz, “When You Can’t Get Through to Them: Cultural Diversity in Mediation.” http://www.mediate.com/articles/rendon.cfm
Perception of behavior in mediation may vary from culture to culture and mediators should be aware of these differences. Communication styles, time orientation and application of rules are explored as examples of cultural differences that can influence communication in mediation.
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Sabnani, Haresh B.; Ponterotto, Joseph G.; and Borodovsky, Lisa G., “White Racial Identity Development and Cross-Cultural Counselor Training: A Stage Model.” The Counseling Psychologist 1991; 19 (1) 76.
Presents training exercises structured to aid white counselors through the stages of a multicultural training model. The complex nature of interracial relationships must be incorporated into training under racial-identity models.
Savage, Cynthia A., “Culture and Mediation: A Red Herring.” American University Journal of Gender and the Law, 1996; 5 (269).
The article discusses the role culture plays in all mediations, and identifies the importance of acknowledging value orientations rather than relying upon cultural stereotypes.
Singelis, Theodore, “Teaching About Culture, Ethnicity and Diversity: Exercises and Planned Activities.” Sage Publications, Inc, 1998.
Exercises and techniques for use in cultural competency training programs.
Steward, Robbie L., and Douglas M. Neil, “Negative Outcomes of Diversity Training: What Can We Do?” Presented as a Symposium at the 1999 Great Lakes Regional Conference Division 17 of the American Psychological Association
Multicultural training in psychology consists of a tripartite model including personal awareness, cultural knowledge, and cross-cultural counseling skills. The emphasis of diversity training tends to focus too much on behavior during the training process rather than on shifting behaviors.
Townley, Annette, “The Invisible–ism: Heterosexism and the Implications for Mediation.” Mediation Quarterly 1992; 9 (4), 397.
Townley examines the role of the mediator in perpetuating society’s pattern of ignoring issues unique to lesbians and gay men. Provides example of ways that mediators can change this lack of focus and gives examples of conflicts that could be mediated.
Trenary, Sara Kristine, “Rethinking Neutrality: Race and ADR.” Dispute Resolution Journal 1999; 54-Aug, 40.
Article explores racism and the impact of racism on the balance of power in mediation and suggests that mediator neutrality in situations where there are significant power imbalances may facilitate the manifestation of these imbalances in the outcome of the mediation.
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Weller, Steven and Martin, John A., “Culturally Responsive Alternative Dispute Resolution for Latinos.” State Justice Institute/Center for Public Policy Studies, 1996.
A report on the need for mediators who are cognizant of the cultural differences between Anglo-Americans and Latinos.
Weller, Steven, Martin, John A. and Lederach, John Paul, “Fostering Culturally Responsive Courts: The Case of Family Dispute Resolution for Latinos.” Family Court Review 2001; 39 (2), 185.
Suggests improvements to court-attached custody and visitation mediation services to better reflect the culture-based needs and expectations of Latino litigants.
Wheeler, Michael L., Diversity Training, The Conference Board, Inc., 1994.
Identifies different models of diversity training and discusses their effectiveness. Potential mistakes in training techniques are also identified.
Wright, Walter A., “Cultural Issues in Mediation: Individualist and Collectivist Paradigms.” http://www.mediate.com/articles/wright.cfm
Describes attributes of individualist and collectivist cultures and the need for mediators to be aware that the traditional mediation model is based on individualist cultural assumptions. The model’s cultural perspective may effectively adjust the model to prevent the emergence of obstacles to agreement.
This bibliography was researched and compiled by Marya C. Kolman and Amy Wenger Bixler, of Columbus, Ohio with assistance from law students, Mara A. Smith and Shama Ahmed. Guidance and assistance was provided by Paula Trout, Margaret Powers and Sue Bronson.
This bibliography is updated regularly. Please send comments, corrections and citations or copies of materials for possible inclusion in the bibliography to Marya Kolman, 3391 N. High Street, Columbus OH 43202, e-mail [email protected] or fax (614) 262-2753.
This bibliography was prepared by the Association for Conflict Resolution, Family Section.
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