In “Bargaining in the Shadow of the Law: The Case of Divorce,” Robert H. Mnookin and Lewis Kornhauser discussed many ways in which the law provides a framework for divorcing couples to define their own rights and responsibilities after divorce. 88 Yale Law Journal 950, April 1979. We have come a long way since that journal devoted its entire issue to conflict resolution, featuring their far-reaching examination of private ordering in divorce. The concept could not have been more fitting, nor better timed.
The article helped to set the stage for the robust growth of alternative dispute resolution in many forms that we now enjoy, including our Supreme Judicial Court Uniform Rules of Dispute Resolution and the flowering of family mediation through organizations, training, literature and even an occasional Hollywood movie. But at the time they wrote, much of divorce law was in the dark. Probate and family court judges had wide discretion and little guidance, and unpredictable court results could depend on who your judge was and other seemingly capricious factors.
Light Dawns
So where are we now? By 2017 divorce law has become far more clear and often even predictable. The single most vital contribution to this framework for helping couples discuss and define their own divorce terms are the federally required Child Support Guidelines (CSG). One can only imagine the thousands of couples whose divorces have been simplified by the CSG. In my early days of mediation about 6 months after the article appeared, I was constantly asked, “What will my child support be?” and Mr. Hem met Ms. Haw: “Well, it depends. It depends on what county you are in, or who the judge is,” etcetc. The law shed little light on the subject, and any shadows shifted or conflicted.
A glimmer of light appeared in October, 1978 when Probate and Family Court Judge Edward Ginsburg wrote an article, “Predictability and Consistency in Alimony and Child Support Orders,” in the Boston Bar Journal. He proposed a simple formula based on the income of the payor; that light helped to settle many cases. In one mediation the husband said, “I think 33% of my income is too much for me to pay my wife but I am willing as long as I know I am not the only guy in Middlesex County doing it.”
As more lights appeared, the shadows diminished.
The CSG worksheet now allows couples to consult their computer and find the answer to their question in minutes.
The parents may not agree, but they have a framework for their negotiation. For example, mediating couples can ask, “Does the CSG amount make sense for us?” and they can compare the suggested amount to their actual living expenses to make an informed decision in the light of what a court would do.
The Alimony Reform Act of 2011 sheds more light
Pesky question of property division have been
Effects of Light
One effect of this evolving clarity is to change the question. Instead of arguing over what a court would do if
It remains important for couples to know what the
“’I am half sick of shadows,’ said the Lady of Shalott”
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