Massachusetts Divorce Mediation FAQs

Not every divorce involves significant tax issues. Moreover, many mediation participants are capable of understanding basic tax issues, such as child tax credits, that can arise in a divorce. More challenging tax issues include the tax deductibility of alimony, transfers from retirement accounts using Qualified Domestic Relations Orders (QDROs), couples owing back taxes, 529 college savings accounts, how long divorcing spouses in Massachusetts can file “joint” tax returns, and tax issues concerning the marital home. It’s important to recognize that even the most tax-aware divorce mediator generally cannot provide specific tax advice to divorce participants. For this reason, it often makes sense for mediation participants to consult with an outside tax expert, either individually or together, before finalizing their divorce agreement. (Similarly, a tax-aware mediation coach can often assist a participant with specific tax issues.)

However, a tax-aware mediator can play and important role in spotting and avoiding tax issues that can arise in the divorce context, as well as drafting divorce agreement provisions that effectuate the tax goals articulated by the participants. For a more complete rundown on tax-aware mediation, check out Kim Keyes’ blog, Tax Reform and Divorce: Is Your Divorce Mediator Tax-Aware?

It may be possible to include third parties in a mediation, but it is important to resolve the groundworks for the involvement of outside individuals before inviting them to mediation sessions. In particular, outside experts such as financial experts or child therapists can aid the mediation process by presenting their expertise for both parties. (It should be noted, of course, that such third party specialists often need to be paid for their time.)

Mediation that includes each party’s use of a mediation-friendly attorney can also be productive, so long as the spouses, mediator and attorneys all agree to appropriate ground rules before meeting in person. In general, however, divorce mediation thrives on separating spouses talking candidly and honestly with one another, which is typically easier with only the spouses and mediator in attendance. If both spouses bring an attorney to the mediation sessions, the lawyers have an invariable tendency to dominate the conversation (we make this observation with affection, given that our mediators are themselves lawyers). Perhaps most importantly, the direct involvement of attorneys greatly inflates the price of mediation.

It is important to distinguish between the direct involvement of attorneys in the mediation process and the far less direct involvement of lawyers as Mediation Coaches. An attorney acting as a Mediation Coach does not attend mediation session; he or she assists a spouse with the mediation process from the outside, offering advice on negotiations and specific legal issues. Most mediators encourage spouses to use mediation-friendly attorneys as Mediation Coaches, as these attorneys can provide legal advice and undivided loyalty to a spouse in a manner that a neutral mediator cannot.