Massachusetts Divorce Mediation FAQs

Yes, a divorce agreement that is the result of the divorce mediation process is just as legally binding as an agreement hashed out by attorneys during litigation (or ordered by a judge after trial). Indeed, one might say that the whole point of the mediation process is to produce an enforceable, legally binding agreement that can be filed with the court as an enforceable contract. Once made, a Separation Agreement solidifies the rights and obligations of you and your spouse in the divorce. If you think your spouse is not upholding their end of the bargain, you can bring it to the attention of the court through a Complaint for Contempt.

However, one of the great benefits of divorce mediation is that resulting agreement tend to be violated less frequently than agreements that are the product of litigation. This tends to be true because both spouses have more control over the completed agreement through the mediation process than spouses who reach agreement through the coercive pressure of litigation. Mediated agreements tend to fall more precisely in line with the future needs and interests of spouses, avoid many of the resentments and frustrations with the litigation process that can motivate violations. Additionally, because both spouses contribute to a mediated agreement, former spouses often take a measure of pride in authorship, with results in better compliance with the agreement’s terms.

A valid divorce agreement that is the result of the divorce mediation process is legally binding in all the same ways as an agreement that is the product of litigation. Accordingly, once a mediated divorce agreement has been finalized and approved by a judge, a spouse who fails to comply with the terms of the agreement may be subject to a contempt action. The contempt powers of Probate and Family Court judges are broad, and violations can result in anything from financial sanctions to the loss of parenting time to incarceration.

However, enforcement problems tend to be rarer for divorce agreements that are the result of mediation compared to agreements that are the product of litigation. This is because mediated divorce agreements represent terms that both spouses agreed upon cooperatively, during the mediation process, while litigated agreements often arise out of coercive pressure that arises from the adversarial nature of a contested divorce.

Divorce agreements that are made through the mediation process are just as enforceable as agreements that are the product of litigation, or judgments entered by a judge after trial.

Throughout the mediation process, the mediator’s goal is to craft a well-written divorce agreement that is free of ambiguity or uncertainty. In this regard, a mediated Separation Agreement is no different from an agreement prepared by attorneys through litigation. The only difference between a mediated Separation Agreement, and one prepared by attorneys during litigation, is the methodology employed in reaching resolution. In either instance, the agreement is incorporated in the Judgment of a Divorce and becomes enforceable as a court order thereafter.

Because divorce mediation is conducted outside of the courtroom between you and your spouse, there is often only one single court appearance that needs to be made over the course of the entire divorce – i.e. when the divorce papers need to be filed with the court. If parties each want the mediator to attend the hearing, this can generally be arranged, with certain limitations. For example, spouses must remember that even if their mediator is a divorce attorney, the mediator would not be acting as an attorney for either party (or both) at the hearing, and would not give legal advice. Moreover, most mediators will be very reluctant to appear as a witness before a judge, even in an uncontested hearing, where the work product of a mediation is barred from disclosure in any court proceeding.

In rare occasions, spouses currently going through a divorce mediation may need to make a court appearance for matters related to their divorce. For example, the tension in divorce is so high that it leads one spouse to file a restraining order against the other, or child custody needs prove to be contentious enough that a temporary court order becomes necessary to prevent a situation from escalating. In these instances, Massachusetts law protects mediators from being served with subpoenas or from otherwise being compelled to testify on behalf of one or both spouses.  

In Massachusetts, even divorces that are completely resolved through the mediation process must to be filed in court to be effective. If a mediated divorce agreement is not filed in court, it will not be enforced as a divorce.

If your mediator is an attorney, you can generally rely on him or her to help you prepare a Joint Petition for Divorce, as well as supporting forms and filing instructions. Mistakes in the filing process can raise legal implications down the road, so preparing and filing a petition properly is crucial. The mediators at South Shore Divorce Mediation are all experienced divorce attorneys.

If your mediator is not an attorney, a greater burden may fall on you and your spouse to file the property documents with the court. In Massachusetts, the proper documents to file depend on the nature of your divorce. Divorces featuring children under the age 18 require spouses to file additional documents, and attend the Parent Education Class prior to an agreement being finalized.  

It depends on the type of case. For a divorce, you will have to appear in court once, so the judge can review your mediated agreement to ensure that it is fair and reasonable. When an agreement and all the requisite paperwork is submitted as an uncontested Joint Petition for Divorce, the court will schedule a hearing a date for your agreement to be reviewed by the judge. While no-one enjoys appearing in court (except lawyers), generally if there an agreement, your “case” will be called quickly and your day in court will be brief.

For other instruments, such as mediated agreements for modification, the courts have a process for approving an agreement without the need for either person to appear in court! As long as the requisite paperwork is filed, the judge can decide to administratively allow a modification agreement without anyone appearing in court.