Matthew Brickman Interviews Casner & Edwards Family Law Partner Marc Fitzgerald

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Matthew Brickman (00:00:02):
Alright. Today I am joined by Marc Fitzgerald. Marc Fitzgerald is a family law partner at Casner and Edwards, um, in Massachusetts and handles all types of family law matters, uh, from divorce, custody, uh, child support, alimony, paternity adoption, pre prenuptial agreements, postnuptial agreements, uh, just about anything you can think of when it comes to family law. Um, and then Mark also acts as a parenting coordinator, um, discovery Master, and an attorney representing children. Um, so Mark, thank you so much for coming on. Um,

Marc Fitzgerald (00:00:53):
Glad to be here. Yeah,

Matthew Brickman (00:00:54):
Thanks

Marc Fitzgerald (00:00:54):
For having me. Yeah.

Matthew Brickman (00:00:55):
And, um, you’ve been doing this a little bit longer than I have. You went to Boston College, um, graduated in 95 and then went to New England Law School in 2002. Um, did you just start, like, like you got done with law school, is, did you go to Kasner and Edwards? Have you been in other, uh, firms or,

Marc Fitzgerald (00:01:16):
Sure. Great question. I I, I didn’t actually start out as a family law attorney right after law school. I, uh, actually took a few years even before that, after college and, and went into the workforce and then went to law school. And then after law school I was a law clerk Okay. At a litigation firm, uh, for a period of time. And then I started out, uh, after that a boutique firm, uh, with, with about four or five lawyers practicing family law. And that’s when I really, really got into the, uh, practice. And I’ve been doing it ever since, since 2003.

Matthew Brickman (00:01:52):
Okay. It, it’s interesting ’cause a lot of family attorneys do not start in family law. They start as public defenders, they start as criminal attorneys, they start in government and they sort of then get into family. I have, I’ve not really talked to many that went to law school and said, I wanna be a family attorney. So why family? What’s like, what was the attraction to family?

Marc Fitzgerald (00:02:15):
Well, the attraction was really, uh, getting to know and representing people, uh, learning about their lives, helping them out through an extraordinarily difficult process. Uh, it does match well if you want to be in, uh, bo both the courtroom and also in sort of the boardroom meeting setting, you get a little bit of both variety as in a practicing attorney. So oftentimes, uh, to your point, there are, uh, prosecutors, former district attorneys, uh, public defenders who are in court a lot, who then, uh, move on to family law. ’cause it does sort of fall into that practice area. For me personally, I wanted to, uh, both be in, be in the courtroom a lot and also represent, uh, individuals. And it just fell, uh, very well into, uh, what I wanted to specialize in, in a difficult area.

Matthew Brickman (00:03:04):
Yeah. Yeah. Very, very emotional. Um, it’s interesting, I was, I was talking with an attorney, uh, two weeks ago. Um, she had started out, public defender, was in government and really thought, Hey, I wanna make a change globally. Of course, you know, working with the government. Um, good luck with that. Um, but then she ended up getting into family law, just like you had said, because dealing with the individual, she realized sort of like troops on the ground made more of an impact and a change than policymakers.

Marc Fitzgerald (00:03:45):
Yeah. It’s, you’re, you’re dealing with, uh, some extraordinary issues on day-to-day life of, uh, individuals who are going through, uh, uh, time in their life. That’s, uh, major changes, major shifts. Um, some may want the shift, others may not. And, uh, you have to navigate those waters with each client differently depending on the circumstances. So it, it really does, uh, you really can have a, uh, positive impact in what I said is, is a, uh, emotional and and complicated circumstance.

Matthew Brickman (00:04:18):
Yeah. Yeah. And, and I find, I find as a mediator, you know, dealing with family law, it’s the same issues that you deal with only, it’s incredible how it manifests itself differently with every family. Like

Marc Fitzgerald (00:04:36):
Each and every, each, when I, when I get a, uh, of course, you know, having a number of clients, you know, you get one client that’ll say, well, so-and-so’s divorce went like this, or so-and and so’s cus uh, parenting plan was like this or so-and-so does this for the holidays. There are similarities and the law is, you know, the law is the law. Sure. But it’s not a one size fits all for sure. It’s not black and white.

Matthew Brickman (00:05:00):
Yeah. And that’s, that’s what I like about family law is the creativity that we can have in helping each family structure something that works for, you know, for their work schedules, for their belief systems, for their children, for, you know, geographic logistical issues. You know, we can customize that. Um, so let me ask you this. Um, like, like I said, you know, when I was, uh, looking at your bio attorney representing children

Marc Fitzgerald (00:05:29):
Arc,

Matthew Brickman (00:05:30):
Um, I’ve never seen that. Um, I actually did a little bit of investigation on what that is. So when I first started in, you know, when I, when I finished school, um, and I wanted to become a family mediator, so I went to school to become a family mediator. All of my education was like, I’m going to do mediation, let me get all the degrees and information <laugh>. So yeah, I didn’t wanna be like, okay, I’m gonna do, you know, history. And then it’s like, yeah, I ended up as a mediator, now I’m like, I’m gonna go to school to become a mediator. Um, but that it was later in life. And so I was much more focused, um, you know, with my goal. But, you know, I mean I’ve, I’ve, I’ve got two kids, they’re now almost 26 and 28. Um, and you know, I I I love my kids, but when they were little I liked ’em, you know, but yeah, I’m not really big on little kids.

Matthew Brickman (00:06:17):
I wanted them to like, to, you know, be interactive and, you know, chase ’em mm-hmm. <affirmative> and they laugh in response and whatnot. So, you know, I I sort of thought of this from a logistics standpoint. Well, all right, first let me do guardian ad litem, let do, um, a volunteer through the courthouse guardian ad litem program. Let me see if I, I mean, like I, I like my kids. I don’t know if I’m gonna like anybody else’s kids or I’m gonna care about their kids <laugh>, so let me try this guardian ad litem thing. And I found that I really liked it. And that sort of was where I, it was like, okay, and then I got certified as a mediator and then it’s like, and I started with county civil. I’m like, let me figure out mediation on a small scale with like under 15,000 in case I mess up.

Matthew Brickman (00:06:59):
I haven’t destroyed their retirement and their home and their kids for the rest of their life. Um, so I went through this sort of like, you know, dip your foot in the pool Okay. Go into the shallow end. Okay, fine, we’ll get on the high dive eventually. Right. But as a guardian ad litem, you know, we would, you know, guardian ad litem we’re the representative or we are the guardian of the case, not the child, but of the case. And we make investigations and recommendations based on the statute for best interests of the child. Now then of course we’ve got private and most guardian ad litem work is private and it can be expensive. But what I was looking at, um, you know, a guardian ad litem versus an arc attorney. As an arc attorney, you take that a step further than a guardian ad litem, um, where it’s from what, from my understanding, it’s recommending the best interest of the child, which is a guardian ad litem and also communicating the child’s wishes to the court. Is that correct?

Marc Fitzgerald (00:08:00):
Yeah, that’s a hundred percent correct. Um, the, the arc, uh, program that I’m involved in is a voluntary program. Uh, I’m also trained as a guardian ad litem. Okay. So there’s definitely a distinction with the difference. Okay. Between both. And, um, from time to time I get assigned by, uh, various courts to represent children who are going through a divorce. Uh, and you, uh, are there to act as their voice right. As their advocate. Okay. To, uh, explain to the judge what your client, who is a child, what they, what their desires and wishes are and what’s going on in their, uh, in their lives. Uh, it’s a very, uh, interesting program, uh, and, uh, provide some unique challenges as well.

Matthew Brickman (00:08:47):
So, so let me, let me get this workflow straight. Sure. Mom. Sure. Mom might have her attorney, dad has his attorney, and then you are the attorney for the child.

Marc Fitzgerald (00:09:02):
That’s correct. Or children. Wow. Well, yeah, I mean, you, you get appointed or

Matthew Brickman (00:09:06):
Children

Marc Fitzgerald (00:09:06):
Yes, yes. Wow.

Matthew Brickman (00:09:08):
Now, and, and, and you don’t get paid for this, this is volunteer.

Marc Fitzgerald (00:09:12):
Yeah. Great question. No, it’s all volunteer. Um, there, there are at times, I, I don’t think I recall ever being paid for, uh, for, I think there are at times where attorneys can get paid for, but I, I, mine is voluntary. I do it, uh, on a pro bono basis.

Matthew Brickman (00:09:27):
And I would imagine, I would imagine being volunteer versus being paid, nobody can start screaming about you being impartial because it’s not like Dad is paying for you to be the attorney for the voice of the children, or mom is paying like you’re volunteer. And so it takes away from that potential argument of, you know, you show impartiality to either parent, it keeps you truly neutral representing the child, not mom or dad. Correct.

Marc Fitzgerald (00:10:00):
Probably the ultimate neutral in, in, in one of these cases for sure. Okay. So there’s no financial stake in it. Yes.

Matthew Brickman (00:10:06):
At all.

Marc Fitzgerald (00:10:06):
So,

Matthew Brickman (00:10:07):
So when you do represent a child, like are you, that’s a, I mean that, I’m, I’m just thinking in my mind that could be a lot of volunteer hours. Uh, like how does, like, are they, is is like a set number of hours, like, okay, you know, I’m gonna do my investigation, I’m gonna represent the child and, you know, here’s 10 hours of my time. Or is it okay through the entire case? Like how does that get determined or work?

Marc Fitzgerald (00:10:34):
It’s interesting. It is, back to what we originally talked about. It depends on the case and ebbs and flows and what the challenges are with that particular child on how often you need to meet. Where you’re gonna meet is always tricky. Yeah. Are you gonna meet at the parents’ houses? Sure. Are you gonna meet at a library public location? Yeah. Um, take them out for pizza, ice cream, whatever the situation is to make sure that they’re comfortable. Sure.

Matthew Brickman (00:11:00):
Uh,

Marc Fitzgerald (00:11:00):
And do it in a manner that way. Um, so yeah, it can be, uh, fairly time consuming and there’s some travel involved as well.

Matthew Brickman (00:11:08):
Wow. That’s great. Alright, so I have a question for you based on that, based on a recent mediation that I had. And so if ARC was in the state of Florida and you’re in Massachusetts, and I looked and looked and looked, could, it is not a side, I mean, I cannot find it anywhere in the state of Florida. Um, but I’ll give you a scenario and then we’re gonna see how that would play out. So I recently had a mediation where one of the parents had given the child to the other parent, and that parent then moved outta state. Okay.

Marc Fitzgerald (00:11:47):
Okay.

Matthew Brickman (00:11:47):
The child at the time was 10. Then fast forward four years later, okay, that parent, that parent now has reappeared still out of state, but now has filed going, I want time sharing now, has not communicated to this child for four years, has not seen the child for four years mm-hmm. <affirmative>, and they’re in mediation. And the, the parent with the child is going no <laugh>. Like, no. And saying the the child is, you know, is angry, doesn’t want to talk to you, doesn’t care about a relationship, right? I mean, look, if there’s a court order, I’ll do what I can, but also can I put a 14 year old force, a 14 year old on a plane? And of course I’m talking, you know, from the mediator, all the logistics. Okay, well, you know, who’s paying for it. Okay. You know, how much time are you looking for? Okay, you want the whole summer, you understand that this child is about to go into high school, is gonna have a job, can’t just disappear for three months, they’ll come back and lose their job. What about dual enrollment? Like, logistically, how does that all work? Right? So, right.

Speaker 4 (00:13:00):
So

Matthew Brickman (00:13:00):
Of course the out-of-state parent is going, I don’t care. I want my time sharing. That’s my son and I don’t care. And of course, the other parent’s going, no. So naturally what happens is the parent with the child files a motion with the court to have the child come in and testify their wishes. Right? And of course, the other parent says, you know, no, they file an objection. And so they, they went and had a hearing the day before our mediation on whether or not the judge was gonna allow the 14 year old to come in and testify. Okay. The judge said, I will allow the child to come to court. I will not allow the child to speak, which was interesting, okay?

Speaker 4 (00:13:47):
Mm-hmm. <affirmative>.

Matthew Brickman (00:13:48):
And said, and, and, and so of course everyone was like, well then why bother? And the judge says, children have an opinion. They do not have a say. And so I will listen to all of the arguments, I will look at all of the evidence, but when I make my ruling, I want everybody including that child to understand my ruling. Okay. Interesting. Right?

Speaker 4 (00:14:13):
Mm-hmm. <affirmative>.

Matthew Brickman (00:14:14):
So, you know, for you now, oh, here was the other argument. And so this is this, this is where I’m like, okay, how do you do this as an arc attorney? So of course, the whole thing, um, the reason why the judge said I’m not going to allow the child to come in and testify is because since there was four years of the mother not being around, okay. And the father is going, no, well, then the judge actually said, I don’t need the child to come in and testify. I already know what the child is going to say. A 14 year old is gonna say no. And after four years gonna say no. And, and of course the, you know, the, the mother is going, well, there’s parental alienation, parental alienation, you know, but of course so much of it is, well, if not four year behavior, it wouldn’t have happened in the first place. Right? So, right.

Marc Fitzgerald (00:15:10):
What

Matthew Brickman (00:15:11):
I’ve seen in, in cases like that in, in Florida is the judges say, look, the children aren’t coming in to testify. They have an opinion, not a say. And I’m ordering reunification therapy and we’ll let them work out their issues in therapy. And then a schedule is going to go into place. Right? So as an arc attorney, let’s say for example, that we had that, and you were on this case mm-hmm. <affirmative>, um, how do you work through something like that where like there might be per alienation, like, look, there’s four years you’re gonna have issues. It would be like, I mean, I’m thinking it’d be the, probably the, the fastest job you ever had. It’d be like, um, what do you want? I don’t wanna see her. Okay, we’re done <laugh>. Right. Or like, how do you, how do you do that? Because I know it was a guardian in light, of course. They were like, whoa, we might need a guardian. There was no money for that. Plus there’s nothing to get to the bottom of it. It’s like you’re gonna need reunification therapy, if anything. So how do you get through that?

Marc Fitzgerald (00:16:13):
So it’s a, there’s laid a lot on me there, so I know,

Matthew Brickman (00:16:16):
I know. I mean, it was a lot on me as the mediator

Marc Fitzgerald (00:16:19):
Here, multiple layers here. Um, so, you know, as a, uh, ARC attorney, number one, it’s a client relationship. So it’s different than an investigation where as a G A L you’re investigating, you’re taking down facts Sure.

Marc Fitzgerald (00:16:33):
Uh, as they come to you. So you’re, the, the uniqueness of it that in Massachusetts that Massachusetts has versus Florida not having, is you can build a, a little bit of a rapport with the child. Got it. Um, most times, and with that can come not only just to your point, the first meeting, I’m not going with dad or mom, whatever the case may be. ’cause I haven’t seen him in four years. And, um, the person, the, my mom or dad says he or she is this and that and whatever else, uh, you might hear what, to your point of parental alienation. Uh, but you can can have a few conversations about that and see if there is at least a sliver, an opening, uh, potentially for an olive branch. Right.

Matthew Brickman (00:17:21):
More

Marc Fitzgerald (00:17:21):
Than just, no.

Matthew Brickman (00:17:23):
Right.

Marc Fitzgerald (00:17:24):
Um, the other great part about the ARC program is in Massachusetts because of the ARC program, judge would very rarely, if not, I hate to use the word word never, because Yeah. You really never want to use the word never. But it, it, it really keeps children out of the courthouse. Out of the courtroom judges.

Matthew Brickman (00:17:43):
’cause you are

Marc Fitzgerald (00:17:43):
There always you are, you are there talking, you’re their voice.

Matthew Brickman (00:17:46):
Got it.

Marc Fitzgerald (00:17:46):
You are their advocate. They do not need to be part of it. Judges in general don’t want adult children Yeah. Sitting in the back of the courtroom. Yeah.

Matthew Brickman (00:17:54):
Be

Marc Fitzgerald (00:17:54):
Let alone children figuring out parenting plans.

Matthew Brickman (00:17:56):
Yeah.

Marc Fitzgerald (00:17:57):
That, that being said, that when a child’s 14, to your point, they start having a vo, more of a voice. Okay. They have sort of, they can vote with their feet as far as where they want to be. Okay. Uh, with mom and dad, however, they’re still only 14. Right.

Matthew Brickman (00:18:11):
They’re

Marc Fitzgerald (00:18:11):
Not 17, 16. There’s still time to at least attempt to repair the relationship on some level. So, so yes. A lot of times it does come down to, you know, the arc arc, attorney express. ’cause we’re their advocate. Right? So if, if you’re, if my client says to me, I’m not gonna go with that parent, I really don’t want to, a, a judge may say, well, that’s fine, but we’re still gonna do, you’re still gonna go to therapy. Right.

Matthew Brickman (00:18:39):
Um,

Marc Fitzgerald (00:18:39):
You’re still gonna do this. Okay.

Matthew Brickman (00:18:42):
Um,

Marc Fitzgerald (00:18:42):
Some judges even take a harder stance and say, well, if you don’t wanna see your parent after doing these things, then you may not, I may not allow for you to do your favorite activity, your favorite sport. Right.

Matthew Brickman (00:18:58):
Um,

Marc Fitzgerald (00:18:59):
And that can be a draconian way to do it. Sure.

Matthew Brickman (00:19:01):
Um,

Marc Fitzgerald (00:19:01):
And probably not the best way to get a child to do things. Right. But, um, from, from my standpoint as an ARC attorney, um, it’s, it is, it, it is helpful to be their voice and at least build that client relationship and explain to them the various options of what they can possibly do, uh, in a different way than probably they would hear from the parent who they primarily reside with full-time. Right. Of what their options are.

Matthew Brickman (00:19:30):
So let me ask you this. So do you, like, you represent the child, you find out what the child’s wishes, um, you do give that recommendation to the judge, but do you talk to the other attorneys involved prior to that so they know, or is this something where you keep it close to your vest, you go to court and they’re like, what? You know, I mean, is everybody sort of working together on this?

Marc Fitzgerald (00:19:58):
Sure. So what I always do is I reach out to the attorneys if there are attorneys involved. Yep. I speak to the attorneys, uh, usually together on the phone. So both attorneys. Okay. Yeah. I can hear from both of them. And it’s in sort of a more of a neutral setting. Got

Matthew Brickman (00:20:12):
It. And

Marc Fitzgerald (00:20:12):
Then I also speak to both parents individually, uh, and hear from them. And, and then I will, uh, arrange for a meeting with, uh, with the child.

Matthew Brickman (00:20:22):
Got it. Well that’s really

Marc Fitzgerald (00:20:23):
Interesting. And then, and then once there’s a, to your, to your, to answer your question, once there’s, uh, an understanding of what the child wants, I then voice it to the attorneys, uh, before we get into the courtroom. ’cause the idea is to avoid the courtroom if you can, and work out resolution, uh, in your, your type of setting Yeah.

Matthew Brickman (00:20:44):
In

Marc Fitzgerald (00:20:44):
That type of

Matthew Brickman (00:20:45):
Forum. Well, and that also, I mean, also is your setting with mediation, conciliation, you know, just, you know, trying to empower the parties to take control of their life. Not leave it up to a judge, but if that’s what they choose, that’s what they choose.

Marc Fitzgerald (00:21:00):
Right. Yeah. Exactly. Alright.

Matthew Brickman (00:21:03):
This is, this has been interesting. Alright, so let’s switch gears. Let’s talk about, um, what is term, some people may know the term, some people don’t. Um, I’ve heard it not all that often. Um, especially being that I am gray. Um, so it’s called gray divorce. Um, sure. And it’s people getting divorced in their later years. Um, when I hear gray divorce, the first thing that pops in my mind is baby boomer. Um, right. Which, you know, I’m in Florida, we’re retirement central. Um, so do you do a lot of the, you know, gray divorce, the, you know, people that have been married maybe 20, 30, 40, 50 years and, you know, they’re in their fifties, sixties, seventies getting divorced?

Marc Fitzgerald (00:21:47):
Yes. A a number of them, uh, especially, uh, fairly recently, uh, you know, in the last five years or so, I don’t know if obviously the pandemic had something to do with it as well, but there’s been a rise in that sort of grade divorce, where before it was more, uh, people getting to that age. They maybe they just stuck it out and waited till retirement years.

Matthew Brickman (00:22:09):
Sure.

Marc Fitzgerald (00:22:10):
But, uh, there are a number of cases of spike in cases of people, you know, 55 to that 55 to 67 retirement age 50 and above, uh, getting divorced. And there’s a lot to navigate with that, um, on both sides, depending on the circumstances as well. Yeah. So it’s, uh, certainly coming up more and more.

Matthew Brickman (00:22:28):
Well, so I think, I think too, I mean, ’cause I’ve done a number of them and as a mediator sitting in the middle of it, you know, I always get to ask all the great questions. Um, and, you know, I can go places sort of, kind of, that council may not be able to go, um, <laugh>, you know, and be like, you know, and when I first started doing mediation, I had my poker face. I’m like, really? Wow. Okay. Alright. Been doing it for so long. I’m like, at what point did you think this was a good idea? You know, I’m just like, you know, let me just talk to you. Right. As a human being. And so I, I, I remember one of the first ones when I was a contract mediator back in, good golly, um, oh seven, I think it was when I mm-hmm.

Matthew Brickman (00:23:15):
<affirmative>, when was contract mediator with the courthouse. I had a couple come in and they were in their eighties and they’re filing to get divorced. And I actually, a and I, and I said, you know, how long have you guys been married? Oh, we met in high school. And I, and I actually asked him, mark, I said, look, with all due respect, why, like, you’re not that far off from till death do us part, you’ve gone the distance why, like, I’m, as a human being, I’m interested. Right? Sure. Forget about, forget about, I’m a mediator. I’m like, why? I was not expecting the this answer. But they both, you know, I mean, they’re in their eighties, they’re so cute. And they both put their heads down. They thought for a moment, they looked up at me and almost in stereo sound like they’re both telling me at the same time, you know what they told me?

Marc Fitzgerald (00:24:18):
What’s that? What I’d like to hear it? We

Matthew Brickman (00:24:21):
Just wanna die happy.

Matthew Brickman (00:24:24):
I’m like, what? And it reminded me of my grandmother that was married to my grandfather for years and years and years and years. And, um, when they were moving from Florida to Georgia, I was over helping my grandmother pack. And she’s in the garage and she starts crying. And, and I said, what’s wrong nana? And she’s like, when is it my turn to be happy? I’m like, what do you mean be happy with all the grandkids? And, and, and, and the family. I’m like, what do you mean? And I didn’t know that, you know, they had gone and seen an attorney many years prior, you know, thinking about divorce. But then, you know, I mean, and they were, they were, I mean, like this golly, she was what, her late sixties or so at that time, they had gone when they were in their, I guess their fifties and just financially, you know, like at that time, you know, she wasn’t working.

Matthew Brickman (00:25:15):
He was, you know, he had retired early and it’s like, okay, there, there, there wasn’t enough money, right? Like, for both of them to live the standard that they had both gotten accustomed to. There wasn’t enough money to go around. And so they had actually gone consult, an attorney came back and said, you know what? Nevermind, we’ll just put up with it now. The good it, it had a better, had a better ending when they moved. My grandfather got sick. Um, and he, he mellowed out and he act, he actually said, he goes, you know, being angry and grumpy takes a lot of energy and I just don’t have the energy anymore. And he actually became nice and they, and they finished their marriage till death. Did they part, they finished mm-hmm. <affirmative> and it was better than the first part, which was the difficult part. Um, and so, you know, with the grade divorce, and that reminds me like, I’m going, you know, with, with some people, I’m like, okay, you’ve put in the time and the hard work and the heavy lifting, which is the kids and the working, and you’re younger and the running around, you’ve done, now you’re in your golden years, maybe they’re silver and now it’s tarnished, I guess <laugh>, um, <laugh>. But it’s like, really? But yeah, people are doing

Marc Fitzgerald (00:26:29):
That. You know, I think, I think, um, you made a great point about what you asked them and they said they wanted to be happy, I think. Um, and you know, in that particular instance in their eighties that’s more like white, white divorce or, um, yeah.

Matthew Brickman (00:26:43):
Not great.

Marc Fitzgerald (00:26:43):
No, no more teeth divorce anyway. Yeah. Um, but at that age, you know, 55, 60 years old, you get people in who, you know, they, they’ve, the kids are grown up, they’re out of the house. Yeah. Um, they’ve had difficulties over the years and there’s still some life to live and Yeah. And they wanna sort of live it, uh, in a way that, uh, you know, has not been the way it’s been. Yes.

Matthew Brickman (00:27:07):
And,

Marc Fitzgerald (00:27:08):
Um, you know, it, it can be, you know, one person may not want that divorce, the other does. And it’s, it makes it a little bit complicated. But, uh, oftentimes it does come down to, uh, that exact thing that you said, happiness as far as deciding to move forward with it. And then the complicated part is, again, to your point, can they handle the financial difficulties of making that decision and potentially adjusting their lifestyle from what it, what it is, um, while they’ve been together, uh, because they’re getting towards those later years. And that’s something you have to think about. And that’s why this great horse topic comes up and up again in seminars because it’s a, it’s a very difficult choice for a lot of people to make. Yeah.

Matthew Brickman (00:27:52):
So let me ask you this, um, with, you know, I get ’em a mediation, but you’re representing ’em, so they’re coming to see you long before they come and see me. Um, sure. So, um, I mean, it, it reminds me of, of, of a mediation that I had where they did not have attorneys. They wanted to do it themselves. So they filed their paperwork, paid the filing fee, got everything in place, came to mediation, we’re going through then equitable distribution, the financial affidavit. And, you know, just because of how they had structured their family, their lives, the husband was, you know, taking care of the finances. The wife was taking care of the home. They never had, you know, a budget meeting, you know, between husband and wife. She had no clue what anything costs. And they had been together for like 30, 40 years.

Matthew Brickman (00:28:42):
Right. And so as we’re going through this, and I’m going, okay. And it was, it was amazing, mark. We’re like, okay, well, you know, we’re going through the financial affidavit. And she’s like, we’re paying what for cable? And he’s like, well, you want your pay-per-view and you want this and you want that. Mm-hmm. <affirmative>. And, and it’s like, our cell phones cost. What? And she’s like, our car, are we really paying that for car insurance? How much is gas? Like, she had not one clue until looking. And I’m like, okay, you do understand a financial affidavit is a budget form and most people do not run their life on a budget. So they, you know, right.

Marc Fitzgerald (00:29:22):
They

Matthew Brickman (00:29:22):
Live paycheck to paycheck, the money comes in, the money goes out. And what they discovered, and this is my question for you as an attorney, when dealing with the great divorce, as they discovered they can’t afford to get divorced, just like my grandparents, and so they actually abated and walked away. Do you get that where like when you’re consulting with them and you start leading them down that path, do you get ’em when they say, okay, I don’t care, we’re still gonna go forward? Or do they actually abate and walk away?

Marc Fitzgerald (00:29:51):
Uh, definitely a little bit of both.

Matthew Brickman (00:29:52):
Okay.

Marc Fitzgerald (00:29:53):
Some, some would just debate and walk away. Yeah, for sure. Uh, some might eventually come back. Yeah. Uh, and some, you know, some don’t. Yeah. They just, they just understand that, that they, they make that decision. Yeah. Uh, and then other people make the other decision like, well, finances be damned, we’re gonna do this. I

Matthew Brickman (00:30:09):
Know. I don’t, don’t care. I’m getting away from you. Uh, either

Marc Fitzgerald (00:30:12):
Way. Yes. But that’s a great question. For sure.

Matthew Brickman (00:30:15):
So, so, you know what’s interesting about the grade divorce topic? And I, I had, I had seen, um, oh, it was on Instagram. I saw a caption thing and I’m like, that is not true. So I actually went and did some research. I’m like, I’m gonna be my own fact checker. Right. Sure. Oh my gosh. It was true. I was shocked. And this goes to what you were talking about where, you know, you know, fifties, sixties, you know, I think part of it too is like, like you said, there’s still a life to live. Right. Which with these baby boomers, back in their day with their parents, there really wasn’t much of a life left to live. Right. You know, we weren’t living as long. Right. We were not as healthy. Um, you know, I’ll be 50 next year and I look, I’m like, there’s no way I’m gonna be 50. Like what? Like, we don’t, like, people don’t look their age anymore and not even just because of, you know, plastic surgery, anything else. People just like, we just don’t look our age. So here’s something interesting for you. Do you, are you, did you ever watch the movie back in the eighties? Cocoon?

Marc Fitzgerald (00:31:19):
Of course.

Matthew Brickman (00:31:20):
Okay. So Wilford Brimley, the guy with the big mustache that was in,

Marc Fitzgerald (00:31:26):
I remember Wilford for

Matthew Brickman (00:31:27):
Sure. Okay. Yeah. Alright. Do you know how old he was when they filmed that movie in 1985?

Marc Fitzgerald (00:31:37):
<laugh>. He probably was. What? I don’t, I don’t, but I’m guessing. Yeah. I’m guessing not what we think is old now.

Matthew Brickman (00:31:44):
What do you think? What, I mean, I mean, look, you know what he looks like. How old do you think he was then?

Marc Fitzgerald (00:31:52):
Probably 45. 50?

Matthew Brickman (00:31:54):
No, he was 51. He looks like 80. Yeah.

Marc Fitzgerald (00:31:57):
He looked like, well, he was supposed to be, that was, that’s the role he was

Matthew Brickman (00:32:00):
Playing. I know that was Yeah. But they didn’t do any prosthetics or anything like that. That was like, okay. Him. I saw that guy.

Marc Fitzgerald (00:32:07):
Yeah. I mean, I, I didn’t think he was 45, 50 minutes watching it. I thought he was about 75, 80 years old

Matthew Brickman (00:32:12):
At least. Yeah. He’s knocking on death’s door and then, and so of course looking back going, I’m gonna be 50 next year. I’m like, there’s, I don’t look anything that like that old and so like with the great divorce. Yeah. You know? Yeah.

Marc Fitzgerald (00:32:24):
Yeah.

Matthew Brickman (00:32:25):
I mean they’re like, like you said, there’s still a life to live. I mean, at 50, oh my gosh, these days you still got another 30 years maybe. So Yeah. With

Marc Fitzgerald (00:32:34):
Medicine, with everything that, you know, science and medicine and health and food. Yeah. And all the exercise and

Matthew Brickman (00:32:40):
Yeah.

Marc Fitzgerald (00:32:41):
Um, there is a, there is a, a longer lifespan for sure. Yeah. Um,

Matthew Brickman (00:32:46):
That

Marc Fitzgerald (00:32:46):
You can live and, and when you’re living in unhappiness, it may shorten your lifespan. That’s be thinking about stress.

Matthew Brickman (00:32:52):
Yeah. Stress,

Marc Fitzgerald (00:32:52):
I mean, yeah.

Matthew Brickman (00:32:53):
Stress. Stress will age you like nothing else. Um, right.

Marc Fitzgerald (00:32:58):
But,

Matthew Brickman (00:32:58):
But you know, um, finishing up this topic on, on, on great divorce, I think, I think that you also mentioned too that, you know, around that age for a lot of people because, and especially I guess these days people are having children later in life. So that means that then by the time they’re empty nesting, they’re around this great divorce age mm-hmm. <affirmative>. And it is like, okay, well we stayed together for the children, which, you know, as a mediator then as a father that actually did that as well, um, to a point to where it’s like, okay, wait a second. You know, is it a good idea, bad idea, I guess, you know, again, just like family law, it depends on the family unit, it depends on personalities, it depends on the environment. I know that for myself with my children, it, it was such a toxic environment that I actually made a choice and said I’d rather get out and set no example than stay in this marriage and continue to set a bad example.

Marc Fitzgerald (00:33:59):
Right. Right. And that’s, you know, that’s a choice again, that a lot of people make in that direction, Matt. They, they decide the situation is so bad staying together isn’t good for, for me it isn’t good for the kids. It isn’t good for for the spouse. Yeah. For the other spouse. It’s not good for anyone. Yeah.

Matthew Brickman (00:34:14):
But then there are like, I mean, when we, when you and I deal with gray divorce, most of those are the ones that probably stayed together for the children. The children are now gone. They’re empty nesting looking at the other person going, I don’t even know if I know who you are. Like you, why are you always around? Don’t you have somewhere to go <laugh>? Um. Right. I also see this too sometimes when one, like with, with an age disparity between the husband and wife. Right. And maybe the husband retires, you know, because he’s retirement age, she’s, you know, many years younger. And then she’s like, why are you always around? He’s like, I’m retired. She’s like, well, don’t you go and do something. It’s like you go and do something. Like, you know, and then it’s like, okay, this isn’t working. Um, because then now they’re all consuming. Like they’re always,

Marc Fitzgerald (00:35:00):
It’s such a shift in what’s going on with their life or either they we’re waiting, you know, with the kids’ not, you know, in, they’re not controlling what’s going on on a day-to-day basis or one now both of you’re home together. Uh, more ’cause of retirement or retirements on the horizon. Uh, and it’s really important that, you know, when, when you’re going through that great divorce that to your point, that person who wasn’t the financial, uh, sort of breadwinner manage the finances, that they have a really clear picture of what it’s gonna look like when, if they do go through the divorce process as far as what they would get with retirement assets, how any, if in any Ali money would work.

Matthew Brickman (00:35:38):
Yeah. I was thinking

Marc Fitzgerald (00:35:39):
What, uh, ta what ta what tax consequences could be down the road if you stay in the house and there’s capital gains. Sure. Um, when can you start taking an i r a, when are the mandatory distributions? All of those considerations come into play, um, when you’re contemplating what your budget is gonna be, uh, down the road.

Matthew Brickman (00:35:58):
Yeah. Well, and you had mentioned, ’cause we’re, we’re, we’re sort of hovering around this at the moment. You had mentioned that you saw sort of a, a trend in that, um, post covid. Right.

Marc Fitzgerald (00:36:08):
Right. And

Matthew Brickman (00:36:09):
Maybe that’s sort of like what we’re talking about now, where it’s like they’re always around each other.

Marc Fitzgerald (00:36:15):
Right. Um,

Matthew Brickman (00:36:16):
And when, and, and, and I saw a huge, you know, spike like 2020 was a phenomenal year business-wise. Um Sure. In 2021 because Yeah. I mean, COVID and it was interesting everything that the media, and I don’t trust everything that the media says or shows, but it was interesting dealing with families like you and I do, because all the things that they had said that were creating issues, I saw, yeah, there was a spike in domestic violence, abuse, alcohol, drugs. I mean, you know, it’s like idle hands become the devil’s hands <laugh>. And it’s like you’re on lockdown, nowhere to go, nothing to do. And after that fact, it’s like, okay, we are done.

Marc Fitzgerald (00:37:03):
Right. Right. Exactly. And that, and that, it’s a similarity, a good, a good similarity to a comparison to the great divorce situation. Yeah. Sort of. Now all of a sudden we’re always, um, what was hap what, what the regular thing that was happening is now stopped and now we’re together and this is not what we want. So, um, it’s a good comparison. Yeah.

Matthew Brickman (00:37:24):
And the other thing that I’ve seen with gray divorce, you know, one of the last one, one of the last things we’ll I’ll talk on with the, with the great divorce is people aren’t retiring. Like, it’s not like you hit a magic age and you retire and you’ve got all this money sitting there No. With inflation and cost of living and everything else. It’s like, no, they’re not retiring early and then just sitting around, they are still working. Or I’ve seen sometimes with health issues, one party may start to have health issues and the other party is like, I’m jumping ship. And I’ve seen that as well. Right.

Marc Fitzgerald (00:38:02):
You

Matthew Brickman (00:38:02):
Know, with,

Marc Fitzgerald (00:38:03):
You

Matthew Brickman (00:38:03):
Know, with those ages. Have you seen that?

Marc Fitzgerald (00:38:07):
Uh, both. Yeah.

Matthew Brickman (00:38:07):
Both

Marc Fitzgerald (00:38:07):
Ends for sure. Yeah.

Matthew Brickman (00:38:09):
For

Marc Fitzgerald (00:38:09):
Sure. Absolutely. Health issues can, can cause serious stresses and end up in divorce for sure. And then, uh, as well as ongoing working, one person’s still working the other doesn’t want ’em to or whatever it might be. So yeah. It’s, it’s, it’s a variety of things for sure.

Matthew Brickman (00:38:24):
Yeah. So, yeah. Alright. So, um, let’s switch gears into, um, parenting issues. Sure. Friends, have you seen, so I mean, and, and maybe we’ll just follow with what we’re talking about with, you know, 2020 lockdowns finally. Okay. We all got released. It’s like animals in the zoo now we’re running amuck. Sure. Um, but trends, what have you seen with trends with, you know, divorce and paternity matters?

Marc Fitzgerald (00:38:54):
Uh, what

Matthew Brickman (00:38:55):
Are you experiencing

Marc Fitzgerald (00:38:56):
Parenting with? Parenting schedules? The trends are certainly, have certainly shifted. Um, there’s definitely, uh, more of a trend towards, uh, equal parenting time, moving towards both parents having, um, more time, uh, as it equal with the children. Yep. Uh, in Massachusetts, they used to use the word custody and they’ve Yeah.

Matthew Brickman (00:39:19):
Really

Marc Fitzgerald (00:39:20):
Re removed that word. We don’t

Matthew Brickman (00:39:21):
Have that

Marc Fitzgerald (00:39:22):
Either. They call, call it a parenting plan or, uh, schedule, primary time sharing, parents time sharing. Uh, and so there’s, there’s been a real trend, uh, to move towards, uh, a schedule that is, is equal. And some of it, um, really is because a lot of families are dual working families. Right. So both, both parents have been out in the workforce and they’ve been, you know, sharing responsibilities with the kids in certain ways. Some would say they haven’t, but, um, they not exactly

Matthew Brickman (00:39:55):
Equal, but they’re going to.

Marc Fitzgerald (00:39:57):
Right. Right. Right. Some, uh, have, some have childcare involved as well, a nanny or, uh, babysitter or whatever you might wanna call it. Uh, helping out with the kids during the daytime or getting them to and from things. And so all that comes into play. I, you know, where it gets complicated still is in these, in this traditional, uh, for lack of a better term, marriages, where there’s one person that’s in the workforce, the other person Right.

Marc Fitzgerald (00:40:24):
Chose to leave the workforce and stay home with the children. And yet there’s still that trend of creating sort of an equal parenting plan when in essence it hasn’t really been that way for eight, 10 years Yeah. Or whatever it might be. Um, while these parents were together, uh, one person made a choice to, they, they made a choice jointly to leave the workforce. One left and the other, the other went out and worked. And yet there’s this trend for equal parenting time. So it can cause, cause a great deal of, uh, sort of, um, anxiety or issues in those particular cases. Yeah,

Matthew Brickman (00:41:01):
For sure.

Marc Fitzgerald (00:41:01):
And

Matthew Brickman (00:41:02):
I get those. It’s, you know, the way, the way that I, you know, as a mediator that I describe parenting to people to help them sort of be able to wrap their head around it. Uh, because a lot of people, as you know, you know, they’re very emotional when they’re dealing with parenting issues because we’re talking about their children, right? Yeah. And so, and so I break it down from and say, okay, look, there are three levels of emotional relationship. You’ve gone through all three. Some people go through all three in one night. If it’s a paternity action, sometimes <laugh> and maybe you went through it over 10 years or more, I don’t know. Right. But Right.

Speaker 5 (00:41:40):
You

Matthew Brickman (00:41:41):
Have acquaintance, fine. Hey, you want a date? Sure. And guess what? You make up your own rules, but there’s no accountability, no responsibility and no consequence. It’s, it’s whatever you guys choose. Sure. Then you go to the next level, which is intimacy. Fine. You have your kids, well guess what? There’s still no rules. Accountability or responsibility or consequence. ’cause you make up your own rules of who’s going to work, who’s staying home, who’s paying for things, whatnot. Then you go to the third level, which is where you’re at now, which is this isn’t working anymore. Mm-hmm. <affirmative>. Okay. That’s a dangerous place to live for an extended period of time because there’s still no rules, accountability, responsibility or consequence. So whatever choices you made of who’s going to work, stay home, you’re allowed to do that. That’s that. That’s just how it is. But now the whole point is to transition you out of an emotional relationship into a business-like relationship where the two of you are gonna become equal CEOs of the company. And we’ve got two aspects of creating this company. The company is your child, Inc. And so

Speaker 5 (00:42:48):
We’ve

Matthew Brickman (00:42:48):
Got decision making and we have time sharing. So decision making, you guys are gonna have shared parental responsibility and decision making. That means that you both have 50 50 say in control of this company. Nobody has 51%. You have to come together, have board meetings and discuss what’s in the best interest of this company. Okay, well how are you gonna do that? Well, like any board meeting, you usually have a secretary, you have a paralegal taking minutes to memorialize all the conversations of the board meeting. Well, guess what? You guys are gonna do that in writing. You’re gonna do that text or email, or you’re gonna use a parenting app. And that’s how you’re gonna have your board meetings. Now, as a C E O, we’re gonna create the rules of what you’re allowed to do and not allowed to do so that you’re not always looking over your shoulder thinking that maybe your other c e o is trying to set you up. Which that’s pretty stupid because why would you wanna crash the company?

Speaker 5 (00:43:38):
That’s right. <laugh>.

Matthew Brickman (00:43:39):
But then you have time sharing. Well, that simply is, okay, as the c e o of this company, what days are you mom going into the office and running the company and dad, what days are you going to the office and running the company? We have 365 days. This company has to have someone in the office 365 days. So we’re gonna divide up and say, okay, who’s going in? This is the corporate docs that structure your company. Now I know that this morning when I started mediation, I did not wake up, pull out my corporate docs that were created back in 2005 and say, alright, how do I run my company today? No, like any company, you put ’em in the drawer, you ignore ’em, you just run your company and think what’s in the best interest of running this company? Only you pull those out if somehow probably you get sued.

Matthew Brickman (00:44:25):
So you’re like, you call your attorney, you’re like, where are your corporate docs? Okay, no, no, no, you’re covered. You did everything right. Okay, fine. I said, so we’re gonna create the default, put it in a drawer and ignore it. Go out there and run this company as two CEOs. That helps them get out of the emotional state into this is a business. And that then helps them be able to wrap their head around, okay, mom, if you made, if you guys made the decision, you can make whatever decision you wanted. There was no accountability rules, responsibility or consequence. Now there’s going to be, this is gonna be a court order. This is a signed document, it’s a contract, it’s creating your company. And for the first time ever in your life, there’s rules, accountability, responsibility, and consequence. Don’t breach this contract.

Marc Fitzgerald (00:45:13):
Right.

Matthew Brickman (00:45:13):
That’s not a good thing. This is going to be a contract and it’s going to be an order of the court. Well, that helps them then be able to then wrap their head around, okay, mom, you and dad may have said, Hey, you’re gonna be a stay at home mom and I’m gonna go work, but guess what? No, you are now going to do domestication stuff, homework, bathing, feeding, cleaning the house, and you’re gonna go to work. And dad, sorry, you don’t get to pull all that overtime and come and go and do what you please. ’cause someone else is do is doing all the heavy lifting. No, you’re gonna have to also, you know, mark, as you said, if we’re doing equal, then you know what, you’re gonna have to work and then you’re gonna have to do domestication stuff. So mom’s gonna have to go work and you’re gonna have to take on domestication stuff. And when we, you know, as a mediator, when I go through and explain all of this in these terms, it does help to simmer the emotion, help them wrap their head around. Sometimes you get that. No, he promised that I could stay home and raise the kids to which I respond. And he also promised till death do as part, but here you are. Right. So, promises, promises. But here we are. Do you see though, are you seeing, are you seeing more or less or equal, like divorce versus paternity matters when creating a parenting plan?

Marc Fitzgerald (00:46:39):
Uh, I still see more divorce than paternity matters, really. Uh, and they certainly have unique, uh, differences. Yeah. But, um, you certainly see little more of those than, than on the paternity side for sure.

Matthew Brickman (00:46:52):
So, um, I just, I was listened to a podcast last week, uh, by a local magistrate and one of the attorneys, um, and, um, newer statistics than last year, which was interesting. Um, I’m seeing more paternity matters than divorce. Uh, okay. A lot more. Um, they said in Florida, 50% of the filings are paternity, half paternity, half divorce.

Marc Fitzgerald (00:47:21):
Wow. That’s

Matthew Brickman (00:47:22):
Crazy. That’s crazy.

Marc Fitzgerald (00:47:23):
Well, I mean, I could see, I could see it more now with, uh,

Matthew Brickman (00:47:27):
It’s the new generation.

Marc Fitzgerald (00:47:28):
It’s the new generation, people getting married less. Yep.

Matthew Brickman (00:47:31):
Um,

Marc Fitzgerald (00:47:31):
Or later in situations being in relationship, getting married later. Yep. Absolutely. Than, uh, before. So, uh, it certainly makes sense. And that has some unique, uh, you know, when, when paternity versus divorce, that has some unique differences because to your point, which you just talked about, you really need to describe it as sort of this is a business now being set up. Yeah.

Matthew Brickman (00:47:52):
Because

Marc Fitzgerald (00:47:54):
The paternity situation, maybe they were together for a period of time, or, or

Matthew Brickman (00:47:57):
Could be one

Marc Fitzgerald (00:47:58):
Night they were together for a long time. Yeah. Maybe they weren’t, maybe we were together for one night. Yeah.

Matthew Brickman (00:48:01):
And

Marc Fitzgerald (00:48:01):
Now they, now they have to raise a child together. Um, or at least attempt to so that, that makes it, uh, that that can make it very unique and different.

Matthew Brickman (00:48:11):
So let me ask you this, because, um, right now in Florida, we have a number of, uh, family law bills either haven’t reached the governor’s desk are on the governor’s desk or have been signed by the governor, and we’ve got paternity that was just signed two days ago. We’ve got a time sharing that we’re waiting to be delivered, an alimony reform that’s waiting to be delivered and a child support that was already signed. So we’ve got two that were signed, two that we’re waiting on. Um, let me ask you, in, in Massachusetts, um, when it comes to paternity matters, ’cause yes, paternity is different than divorce. Like with divorce, as much as they wanna say no, they shouldn’t have equal, we’re talking about parents that went home to the same home and saw their children every single night, you know, or, or more, less. Correct. Whereas paternity, if they never lived together, even if they did, you know, for a period of time, and now they’re in litigation or whatnot, they’re not living together, um, in Massachusetts. Um, what’s the rules on paternity for, you know, who’s the legal guardian? And until when or

Marc Fitzgerald (00:49:24):
The mo the mother is, until there’s a, there’s a determination on, uh, parenting and, uh, that’s, that’s been the law. So in a paternity situation until, uh, there’s some formal agreement or an action filed by, uh, dad, it’s a rebuttable presumption.

Matthew Brickman (00:49:43):
Yeah.

Marc Fitzgerald (00:49:43):
Up until that point. Um, and, uh, you know, obviously, uh, you know, d n a can come into this sort of, you know, testing can come into play as well if there’s a dispute over, um, who’s, who’s the parent, who’s the father. Uh, but yeah, that’s, that’s the, uh, presumption. So you can get into a real tricky situation at first if there’s sort of, um, arguments over who’s the parent, um, and who’s involved in it. But once you get through that hurdle and you get past that, uh, then it comes down to, you know, navigating a, a parenting schedule Yeah. That, uh, that can work in a, in a different situation.

Matthew Brickman (00:50:22):
Yeah. Yeah. So, so we just had, like I said, two days ago, the governor just signed the shared parental responsibility after establishment of paternity bill. Um, yeah.

Marc Fitzgerald (00:50:33):
And

Matthew Brickman (00:50:33):
It clarifies that after the birth of a child, a parent may request the determination of parental responsibility and child support, um, and a creation of the plan and the timesharing. Um, and it requires that an action to establish paternity, then the court must determine parental responsibility and puts them on an equal playing field.

Marc Fitzgerald (00:50:53):
Wow.

Matthew Brickman (00:50:54):
Um, so I mean, it was, it was, it was touted as a huge father’s rights bill where sure. No longer, um, is it that okay until legally adjudicated by a court of law, dad has absolutely no rights. No. It can be established now a number of ways. Um, and then it puts him on equal playing field as far as guardian. Um, and if the governor signs the timesharing bill, then it’s a presumption of 50 50, which is what the court’s been doing since 2011, for the most part anyway.

Marc Fitzgerald (00:51:34):
Mm-hmm. <affirmative>,

Matthew Brickman (00:51:35):
It’s just going to actually be there. Now granted, it still gives discretion of the court that if someone says, okay, fine, no, well then fine, you can go to court, then you then, you know, the judge has the discretion, sort of, kind of like with the case that we were talking about with the, you know, with the ARC attorney, with that 14 year old, could mom come back and say, Hey, I want 50 50 after being gone for four years. Well, that one would probably end up if’s like, Hey, the presumptions 50 50. Well, yeah. Discretion of the court. Is that in the best interest of the child? And it does give the, the court still a little bit of latitude on a case by case basis. ’cause it’s family law, it’s,

Marc Fitzgerald (00:52:12):
It’s rebuttable. It’s rebuttable. There’s discretion.

Matthew Brickman (00:52:15):
99% of the time, if look, if they’re not a convicted felon, there’s no domestic violence, they’re, you know, they have no drinking problems, no drug problems, you know, none of that. Okay. You just don’t like them as a human being. No.

Marc Fitzgerald (00:52:33):
So yeah, in, in Massachusetts it’s still discretionary as far as the schedule goes. It’s not a, uh, it’s not to that extent like you have in Florida. Um, but like I said, it’s certainly been moving in that direction. Um, yeah. Uh, up our, up our way as well.

Matthew Brickman (00:52:48):
Yeah. Yeah. So, um, so then let’s talk about alimony. Um, you and in Massachusetts and you were part of, um, for, for my listeners, um, I’m sure they’ve probably listened to my 2021 interview with Matthew Barrick. Um, sure. He’s about 30 minutes, I think, west of Boston. You’re in Boston, right?

Marc Fitzgerald (00:53:11):
Yes. Yeah.

Matthew Brickman (00:53:12):
Yeah. So, so he’s about 30 minutes west, and he was part of, I guess, the group that did the alimony reform in, um, in 2011. Was that right?

Marc Fitzgerald (00:53:22):
Yes.

Matthew Brickman (00:53:23):
So, and, and when, when we had talked, you know, we were talking about, you know, Florida’s been trying year after year after year to do it and looking at Massachusetts who did successfully change the rules of alimony and the laws and stuff, and they’ve been trying to do it. Matthew had said that, well, and I said, okay, so it’s working. He is like, well, you know, once it’s in place, you then figure out what works and doesn’t work and, you know, maybe things get, get changed. Um, and you were part of that as well, correct?

Marc Fitzgerald (00:53:59):
Yes, I was part of it as, as an advocate, not necessarily a creation, more of an advocate speaking on behalf of the Massachusetts Bar Association. Yeah. At the time I was doing some volunteer work Okay. For the Bar Association, and I was the family law chair and the Massachusetts Bar Association supported the alimony reform statute. So I was speaking on behalf of the statute. Okay. Uh, in front of the legislature, uh, from time to time during that process.

Matthew Brickman (00:54:26):
So have there been any changes to that cha to, to that alimony reform now that it’s out in the world, it’s working and stuff. Have, have there been any challenges, modifications, changes, or is it still as it was when it got passed?

Marc Fitzgerald (00:54:42):
There’s been clarifications. Okay. Retroactivity, how the statute would be enacted. You have what’s happening,

Matthew Brickman (00:54:48):
Do you have retroactivity the

Marc Fitzgerald (00:54:50):
Real, whether or not it’s, you know, whether or not the, this, the law would apply for divorces prior to 2011 and post 2011. So there’s been some clarifications on that. I think the biggest issue right now with the law is that, uh, in 2018, the tax and jobs acts removed alimony as being a deductible. Deductible for the payor. Correct. And includable as income. Correct.

Matthew Brickman (00:55:15):
The

Marc Fitzgerald (00:55:15):
Statute as presently written in Massachusetts, has a percentage that factors in alimony being deductible and includable. So the percentage ranges are off. And now the judges since 2018 have had to figure out how to adjust the percentages despite the law saying 1%, a different percentage, they have adjusted to a lower percentage because there’s no longer the tax, uh, benefit or taxable income to someone who’s receiving it.

Matthew Brickman (00:55:44):
Right.

Marc Fitzgerald (00:55:44):
So that, that’s something that still is on the books that hasn’t been changed, uh, in and of itself, which is interesting. So,

Matthew Brickman (00:55:51):
So you have a retroactive component?

Marc Fitzgerald (00:55:55):
No, there was a case that clarified the retroactive component. Okay. That’s what I was saying. Yes. Okay.

Matthew Brickman (00:55:59):
Okay. Yeah, because that was one thing, like all the alimony reform groups, and that was something that I think has been in every single bill that they’ve been trying since 2016. And of course, veto, veto, veto, veto, veto going Right. Okay. No. You know, like, you know, and then, and, and there were, there were so many unconstitutionally parts, like last year when Ron DeSantis vetoed it, everybody was all up in arms and everything. And it’s like, like there was so many pieces of that that were unconstitutional that he, he, he just couldn’t, like, there’s unconstitutional pieces and the lay person not knowing that and not knowing that, okay, well this, you have to go look at another statute and this piece, you have to go look at this statute and it contradicts here. They didn’t know that. They’re just like, what do you mean you can’t do that?

Matthew Brickman (00:56:45):
Well, ’cause it was pointing to, it was like, it’s almost like a spiderweb. Right. You know? Right. Which is what a lot of the law is. You’ve gotta, you know, even in, you know, family law, you then go, go to the paternity statute, then maybe you have to go look, you know, depending on the case, you gotta go look at, you know, um, some, you know, another statute. So the lay person, if they don’t exactly know the whole thing, they’re, they’re just gonna look at it and be like, what? They vetoed it. One of the things that they did do right this year, which we’ll see what happens. ’cause like I said, we’ve got a paternity, a timesharing, a child support, an alimony. They’re all separate bills. Sure. For the first time Mark, for the first time, they actually created their own bills. That was the other problem with the bill <laugh> was, you know, like, like Congress.

Matthew Brickman (00:57:32):
The, the, the state legislature thought, Hey, we’re gonna act like the Federal Congress. We’re gonna throw everything into a bill and sneak stuff in and hopefully get stuff done. And of course, you know, the governor’s being smart, having all of, you know, having ju just like, you know, you are there on behalf of the Massachusetts bar looking and I mean, lawyers looking at this thing tearing apart going what? Right. Of course. You know, like, I think it was three years ago, I wanna say it was three years ago, the governor vetoed the alimony reform because there was a presumption of 50 50 timesharing. He didn’t like the 50 50 timesharing. So the whole thing got thrown out. And every year I’m going make it its own bill. If you don’t like it, then vetoed that. Don’t throw the whole thing out because there’s great things in there. So they finally separated everything out, but still, what I heard was still with the alimony component. They’re still looking to what you guys did in Massachusetts going, they did it so well, um, that they were still trying to copy what was done. Because like no one’s sitting there with a blank piece of paper going, alright guys, let’s write our own law for alimony and hope it, hope it works. They’re like, wait a second, Massachusetts did this. They did it successfully. Let’s not reinvent the wheel.

Marc Fitzgerald (00:58:54):
Right. And there’s been a few challenges to it, but it’s been in place now for 12 years and it’s still going fairly strong. Yeah. So, um, there, you know, there obviously, uh, it’s certainly set the, set the, uh, sort of

Matthew Brickman (00:59:07):
Bar

Marc Fitzgerald (00:59:07):
For how it could be done.

Matthew Brickman (00:59:09):
Yeah. So let me ask you this, with, with regards to the alimony. Um, do you guys, have you, you know, like we have the, the, uh, a child support calculator that we can, you know, put in the time sharing the number of children, the income, all the legal deductions mm-hmm. <affirmative> and it spits out a number. Right?

Marc Fitzgerald (00:59:27):
Yep.

Matthew Brickman (00:59:27):
Do you have an alimony calculator?

Marc Fitzgerald (00:59:29):
There are alimony calculators that are utilized, but not, uh, specifically an alimony calculator like, uh, the Massachusetts Child Support Guidelines calculator.

Matthew Brickman (00:59:39):
Okay.

Marc Fitzgerald (00:59:40):
Um, interestingly enough, there is a fairly new case that went to the Massachusetts Supreme Court on child support that intertwines alimony. And now the, the current law in Massachusetts is that you have to run both the child support calculation and an alimony calculation before determining what support can be. And it’s been a, uh, a very controversial, uh, case that came out at the end of the summer called Kavanaugh, uh, that, uh, may reverberate around the country as well. So, uh, it’s an intertwining, uh, you brought up child support, intertwining child support, alimony mix as far as whether or not it should be just a trait, straight child support calculation in cases, or maybe it should be alimony instead of child support. So that’s, uh, I, I’m glad you brought that up. ’cause that’s, uh, something that’s just fairly, that’s fairly new, uh, in Massachusetts. So that’s

Matthew Brickman (01:00:31):
Interesting because, so I use a program called Family Law Software. Okay,

Marc Fitzgerald (01:00:37):
Sure.

Matthew Brickman (01:00:38):
And in Florida, we, we use the acronym peace, right? Like start with parenting, go to equitable distribution, then you go to, um, alimony, child support and everything else. Okay. Right. So when, so you know, now of course, you know, being now in Florida alimony and I don’t know, I mean, I thought it was, I thought, I thought back when Trump was president, like one of the first things he signed was alimony is no longer taxable or tax deductible federally

Marc Fitzgerald (01:01:12):
Mm-hmm. <affirmative>.

Matthew Brickman (01:01:13):
Um, and so at that, so, so, and, and you know, where I’m always getting updates on the family law software and we can pick like, okay, dad lives in Massachusetts. Actually I had one yesterday. Mom lived in California, dad lives in Florida. So I pick what, what state? And it knows their tax brackets, their tax rates, you know, whether they have state income tax or just federal and whatnot. But we actually, so we would run, you know, we, we go through and, you know, do the parenting plan, run the child’s support, and then when we get to the alimony issue, then we do an alimony analysis, you know, need versus ability to pay and then go through all the factors, look at their incomes, uh, look at their percentages of net, you know, but it, but it does tell us, okay, well when we’re looking at the percentage of net to look at an alimony, it, it factors in that child support, which is income to the receiver.

Matthew Brickman (01:02:05):
Right? Then we go down and it has a whole section for alimony. Well, when we put the alimony in there, of course it’s gonna change the child support because it’s income, right? It’s, it’s gonna lessen the net for the payer and it’s gonna increase the net for the receiver. And so we already include all of that, like child support and alimony. And then what we’ve gotta do is then we also have to run prospectively based on if there are no modifications. So say for example, that we’ve got, you know, five years of alimony, right? But let’s say that we’ve got a three-year-old, so we’ve got 15 years of child support. So we would run the calculation, okay, this is the calculation when alimony is in play and child support. And then we would then hit the button, take alimony out and say, okay, then this is what the child support will increase to once then alimony is then gone. And so we run everything all at once and build the whole thing out.

Marc Fitzgerald (01:03:05):
So that’s similar to what this new law, uh, actually put in place. But prior to that, generally if your income was below a certain level, um, whether it was combined 250,000 or combined up to 400,000, it would just be run a child support calculation and, and if you had children, and that would be the, that would be that.

Matthew Brickman (01:03:25):
Wow. Mm-hmm. <affirmative>. Wow. So, alright. So, so we’re doing what, what maybe you guys will be doing if that, uh, if that change happens?

Marc Fitzgerald (01:03:35):
Yes. Yeah.

Matthew Brickman (01:03:36):
Yes.

Matthew Brickman (01:03:36):
Which, which, you know, in a negotiation especially, you know, with, you know, you and I are helping them take control of their lives from this point forward, right? Well, if they actually know what forward looks like, it helps them be able to wrap their head around, okay, can, can I live with this deal or do I need to let a judge get involved? Um, not knowing what could be potentially around the corner leaves a lot of what ifs. And then I, I would imagine, you know, you know, fear of the unknown, uh, creeps in and then they just, you know, they get overwhelmed shut down and be like, I’ll let a judge figure it out. Which, do you know how much you’re gonna pay to let that happen? <laugh>, <laugh>. Exactly. Like that’s not an easy solution. It is a solution. It’s an option if you want it.

Matthew Brickman (01:04:29):
But really, um, we just had that conversation two days ago in mediation where they were, they were like, you know, let’s do alimony and, you know, so we’re doing the whole analysis and we figured, okay, well, you know, just looking at our current laws, not what’s currently pending for a change. And we’re like, okay, well based on your incomes and based on this and based on your need and ability to pay, and, you know, alimony can’t create a savings component, can’t leave him with less money than you can’t, isn’t there to equalize your income. Okay, well this is how much, and we’re like, this is how much, okay, well, for these many years. Okay, well this is the total amount basically that it comes to. And so then we do that, you know, cost, uh, that the, uh, cost analysis going, okay, is it worth it to go to trial or not?

Matthew Brickman (01:05:17):
Well, for this one it was gonna be like $54,000 would probably be the top, because anything more than that, it leaves him with less net income than her. That’s not gonna happen. Doesn’t matter what her need is. Right. Well then we’re talking about, well, how much is it gonna cost you? And then how long is it gonna, and it’s like, okay, you know, yeah, it may cost you about maybe 18, $20,000, but you do realize you’re not getting in front of a judge for the, you know, another nine months or so and what are you gonna do until then? Or let’s create a deal that you can live with. And they created a deal, we did an unequal distribution of the sale of the marital home so she could get that cash in hand now instead of a potential later. And having to pay all that money for a possibility potential, you know? And so just helping them see all the different pieces helped them, you know, gave them that, um, peace of mind instead of the fear of the unknown with regards. You know, the other thing too, we’re like, look, uh, there’s a pending alimony bill if you wanna wait, it’ll be after July 1st, and then all

Marc Fitzgerald (01:06:24):
Find out what’s gonna happen

Matthew Brickman (01:06:25):
And then, right.

Marc Fitzgerald (01:06:26):
Yeah. You

Matthew Brickman (01:06:26):
Know, ’cause this was, this was, you know, under current statute in Florida, it was a long-term marriage, but Yeah.

Marc Fitzgerald (01:06:33):
And

Matthew Brickman (01:06:33):
So it’s like, well, permanent alimony, well, they’re getting a, they’re, you know, the, the alimony bill says there’s no more permanent. Okay, well then, right. Well then what <laugh>, and it’s like, okay, so if you don’t get in front of a judge, which you’re not in three weeks, I’ll guarantee you that <laugh>. Yeah,

Marc Fitzgerald (01:06:49):
Exactly.

Matthew Brickman (01:06:50):
Well then if the ju you know, if, if the governor signs it or if he doesn’t and it just automatically becomes law of July 1st, it’s a whole different discussion. It

Marc Fitzgerald (01:07:00):
It’s not gonna take Yeah. Right. Exactly.

Matthew Brickman (01:07:01):
You know, and we have, and right now, currently we’re having the same discussions with timesharing, you know, going, you know, they can have 40%, it’s like, okay, after ju, you know, if the, if the governor signs this, which he, he just signed the paternity, I cannot see him not signing the timesharing. They sort of go hand in hand. Sure. But it’s like, we’re not having this conversation anymore. Not like, okay, I’ll give you, you can have No, no, no, no. It’s which 50 50 schedule.

Marc Fitzgerald (01:07:28):
That’s it.

Matthew Brickman (01:07:29):
<laugh>, you know, which just, you know, it, it, it makes things I think a, a little bit more palatable, especially being that, you know, there’s still this, do you find in family law, I mean, in, in, in, in all aspects, whether it’s doing the parenting plan even on a great divorce, alimony, child support, there’s still a little bit of that power play. You know, as much as we try to like level it and make it an even playing field, there’s still pieces, uh, where, you know,

Marc Fitzgerald (01:08:01):
I think each side has a power as a little bit of power and control, depending on which topic you’re talking about. Yeah. Under the, uh, umbrella that

Matthew Brickman (01:08:09):
Yeah.

Marc Fitzgerald (01:08:09):
You know, whether it’s divorce or paternity. Yeah. Um, it may be financial, it may be more with the kids, it may be, um, with debt, whatever it might be. Um, yes, there is some of that for sure. I find that Absolutely.

Matthew Brickman (01:08:23):
Yeah. The way, you know, the way, the way that I, I I, I describe, you know, people in general, when they come into either see you or you end up at my table to see me is it’s a lot like the child game, hungry, hungry hippo.

Marc Fitzgerald (01:08:40):
Mm-hmm. <affirmative>,

Matthew Brickman (01:08:41):
Because emotions are high, resources are scarce, and everyone is just power grabbing for as much as they can get. But they don’t even know if what they get, they want, they’re just gonna grab

Marc Fitzgerald (01:08:53):
Anything. They just, they just won’t want it. They just want

Matthew Brickman (01:08:55):
It. Yeah. They just want it. And so, you know, your job, my job is to manage their expectations. You give them legal advice, I give them creative suggestions because they may get a hundred percent of something that they don’t care about, and they may lose the 50% that they were entitled to for something that they actually did care about, you know, just because they’re just power grabbing. And so it’s like, okay, let’s analyze, just like you and I have gone through and looked at, you know, paternity, time sharing, kids alimony, you know, taking ’em through all the different aspects of paternity or divorce, going, what do you want? What’s, you know, and then, and so many times, mark, I’m, I’m sure you probably do as a, as an attorney, is not just what do you want, why do you want it? What’s motivating you? I

Marc Fitzgerald (01:09:45):
I, the number two, the two questions I ask, uh, my clients and also prepare them before a meeting or before court, what do you want and why do you want it? Yeah. Be prepared to explain that to your mediator, conciliator, or judge, either through me or through you. Yeah. Because that’s, that’s, it’s, it’s not just because I want it. Yeah.

Matthew Brickman (01:10:07):
But

Marc Fitzgerald (01:10:07):
Why, why, what’s the reason for it? How do you, how do you establish that? Yeah. How do you back that up? Did you ev why? What’s the purpose of it?

Matthew Brickman (01:10:14):
Did you ever hear this? Did you ever hear the, uh, the, the story about the lemon?

Marc Fitzgerald (01:10:20):
No.

Matthew Brickman (01:10:21):
No. Okay. All right. All right. I’ll leave you with this and I’ll leave our listeners with this.

Marc Fitzgerald (01:10:25):
All right.

Matthew Brickman (01:10:25):
Okay. Story of the limit.

Marc Fitzgerald (01:10:26):
Fantastic.

Matthew Brickman (01:10:27):
Which is exactly what you and I are talking about, which is not just the what, but why. Okay.

Marc Fitzgerald (01:10:33):
Alright.

Matthew Brickman (01:10:33):
So I always tell people, look, it is important to understand the why behind the what, not just the what, which is exactly what you said. So I’m gonna tell you a story. So husband and wife end up in front of a judge arguing over who gets the lemon. Husband says, well, I want the lemon. I’m the one that thought, Hey, we need to buy a house. The wife is like, yeah, but I’m the one who contacted the real estate agent. Husband’s like, yeah, but I put down the down payment. Yeah. Well, I paid the closing costs. Well, you know what, I’m the one that mows the lawn. Yeah. Well I’m the one that thought about putting in a lemon tree and I went to Home Depot and I got it and I planted it. Well, but you know what, it’s still in the house that I found and I contacted the real estate agent and they’re just arguing about, I want half the lemon. Right?

Marc Fitzgerald (01:11:18):
Or

Matthew Brickman (01:11:18):
Sorry, I want the lemon.

Marc Fitzgerald (01:11:20):
Yeah.

Matthew Brickman (01:11:21):
Judge tells both of them, all right, you got one lemon, you got two people. You know what here? Pulls out a knife, cuts it in half, hands it to ’em and says, get outta my courtroom. On the way out to the parking lot, husband turns to the wife and says, what’d you want the lemon for? She says, well, I wanted the pulp. I was going to make lemonade. What did you want it for? Oh, I wanted the Rhine. I was gonna use that on a zest for a pie. Ha <laugh>, if the two of them had actually had a conversation on why they wanted the lemon, instead of getting 50% of what they don’t need and they don’t care about, they could have,

Marc Fitzgerald (01:11:59):
They

Matthew Brickman (01:11:59):
Could have gotten a hundred percent of what they were looking for.

Marc Fitzgerald (01:12:03):
That’s right.

Matthew Brickman (01:12:04):
It’s so important to find out why you want this, not just what do you want. And that’s

Marc Fitzgerald (01:12:11):
It.

Matthew Brickman (01:12:12):
You know, it’s about, you know, expanding the pie instead of just eating the piece that was given to you. Like, look at options, get creative. So I

Marc Fitzgerald (01:12:23):
Love that. I love that. I, I, I can’t agree with you more on that particular piece for sure. Yeah.

Matthew Brickman (01:12:28):
So Mark, thank you so much for coming on. I’ve

Marc Fitzgerald (01:12:32):
Of course

Matthew Brickman (01:12:32):
A great time listening to you. So, um, for my listeners in Massachusetts, or do you practice outside of Massachusetts or just in Massachusetts? Uh,

Marc Fitzgerald (01:12:40):
Just in Massachusetts. Massachusetts.

Matthew Brickman (01:12:41):
Well, alright. For our, our listeners in Massachusetts, how’s the easiest way to get ahold of you?

Marc Fitzgerald (01:12:48):
Uh, you can reach me, uh, at my law firm, Casner and Edwards. Uh, my name is Marc Fitzgerald. It’s fitzgerald@casneredwards.com. And uh, that’s the best way to, uh, to get in touch with me for sure.

Matthew Brickman (01:12:59):
That’s awesome. So yeah, for you, for you out there that our, in Massachusetts, if you need anything family related, get a hold of Mark, um, he’ll take care of you. And Marc, again, thank you so much for coming on.

Marc Fitzgerald (01:13:11):
You’re very welcome. Nice to see you

 

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.