On the issue of valuation, the appellate court noted that, while there was evidence of the market value of the entire Martha’s Vineyard property, there was no evidence as to the husband’s 25% interest – simply valuing it at 25% of market value was without basis.

Further, since the Court acknowledged that the husband’s interest was unlikely to be sold and unlikely to generate income for him, ordering the husband to make a present payment to his wife for $360,000 is “plainly wrong and excessive.”  While the law strongly favors present payments to “if, as, and when” payments, the law also recognizes that where a present division would cause an undue hardship to a party, it is inappropriate.  Elliott v. Elliott, 2011 Mass.App.Unpub. LEXIS 992 (September 6, 2011)

Some couples are inclined to do it; these couples should absolutely consider divorce mediation. Divorce mediation in Massachusetts, for example, is making extraordinary progress, because it’s beneficial for spouses who can agree what they want from the divorce. Mediated divorce is a voluntary process run by an impartial third party, called a Neutral. Both parties have a divorce attorney, but the divorce is handled out of court.

Litigation, on the other hand, is beneficial for couples who don’t know what they want from their divorce, who are dealing with complex issues that they can’t agree on, or who are extremely angry with each other. There are exceptions and divorcing couples who fall between the two (very simplified) categories.

No matter whether you choose traditional divorce litigation or divorce mediation, it is important that your children aren’t considered “business assets” that can be divided. Handling your family’s complex problems logically is an excellent idea, but not all business models are sound.

In re Anderson, Colo. Ct. App. No. 09CA2592 (December 23, 2010)

Simkin v. Blank, N.Y. App.Div. No 3016101501/09 (January 4, 2011)

Ross v. Ross, 2011 Mass. Unpub. LEXIS 434 (April 6, 2011)

One of the common factors between many of the older couples getting divorced is that one of the spouses needs long term care and nursing home stays.  Medicare, the government insurance program for people over 65, does not cover such long term care options.  Medicaid, the Government program for low-income individuals does cover such programs; however, it can’t be used until a person exhausts all his resources.  When one of the spouses gets sick, many married couples have to decrease most of their assets to qualify for Medicaid, leaving little money for the healthy spouse.  If the couple divorces, the healthy spouse may be able to preserve many of her assets.  Elder Law attorneys suspect that this proposition is the main reason why the amount of older couples divorcing has sharply risen.

In addition to money leading to elder divorce, Barbara Waxman, an executive and life coach in San Francisco, states that “many people, especially women, emerge from busy child bearing years with time to re-evaluate their lives and their partners, and decide that they want a relationship that works.”  Mediated divorces are usually the perfect choice for these older couples because there is usually no hostility in the split, and often the split is actually commenced to help the other spouse preserve their assets.

The desire to preserve assets for the healthy spouse is still the greatest cause of divorce in aging couples.  There is another way to preserve assets, however, and that’s to carry out proper estate planning.  An experienced estate planning attorney can help couples properly plan for the costs and decisions involved in a long term care situation and can reduce the need for divorce as the only means to preserve assets.  Estate planning is essential in order to properly plan for illness and aging so that the best option is not divorce or reducing the couples assets so they can qualify for Medicaid.

http://www.bostondivorceandmediationlawyers.com/2011/02/how-will-dont-ask-dont-tell-repeal-deal-with-massachusetts-same-sex-marriage/;

http://www.estateplanninginmassachusetts.com/2011/02/same-sex-couple%E2%80%99s-guide-to-estate-planning/

One night in 2006, while Mr. Wolcott was ill and in a “weakened state,” Mrs. Wolcott plied her usually-abstinent husband with alcohol, causing him to fall off a boat. Mr. Wolcott had to swim a mile to shore and walk for several hours before he got help.  The fall caused him severe injuries – a broken nose, upper jaw and wrist, four broken teeth, and a “blown-out knee.” Then, when he returned home, Mrs. Wolcott forced her injured husband to sleep on the couch because his “breathing” bothered her.  Shortly afterwards, while he was still recovering, Mrs. Wolcott asked him to move out of the house.

Mrs. Wolcott’s next action suggests that, even though her husband was now out of the house, she was still bothered by his breathing.  In fact, she proceeded to solicit his murder, telling a cousin she wanted Mr. Wolcott to “disappear” and asking him if he knew anyone in the Mafia.  Luckily for Mr. Wolcott, the cousin demurred.  The husband was spared the bullet.

Mrs. Wolcott’s lesser offenses – an adulterous “sexual affair,” a “foolhardy landscaping plan,” and $24,000 worth of unnecessary plastic surgery.

Not surprisingly, the judge wasn’t enamored with the sociopathic Mrs. Wolcott and awarded her only 10% of the marital estate.  She appealed and the Appeals Court affirmed the decision.  Wolcott v. Wolcott, 2011 Mass.App LEXIS 16 (January 6, 2011).

According to the New York Times article Religious Divorce Dispute Leads to Secular Protest, Aharon Friedman, a 34-year-old tax counsel for the Republicans on the House Ways and Means Committee refuses to give a get to his ex-wife Tamar Epstein.  The two were civilly divorced by a Maryland court in April and the husband has been upset with the court-ordered parenting schedule. Ms. Epstein claims that he is withholding consent in order to renegotiate the schedule.

Mr. Friedman’s obstinacy has sparked angry protests outside his home that have been spearheaded by the Organization for the Resolution of Agunot (ORA) — an agunah advocacy group. He’s also been condemned by the local Jewish press. A recent editorial in a D.C.-area Jewish paper, headlined “Unchain this Woman,” implored Friedman to be a “mensch” and give his ex-wife the divorce.

Ms. Epstein’s problem may have been preventable, however.  An observant Jewish couple should sign a prenuptial agreement requiring the husband to provide a get in the event of a civil divorce.  An observant married couple might consider a postnuptial agreement, now explicitly permitted in Massachusetts provided certain requirements are met.  In either event, each spouse or prospective spouse needs to retain separate lawyers before signing any such agreement.  This is not a do-it-yourself project.

Although canned agreements are available online, most would not be enforceable in Massachusetts.