{3 minutes to read} The idea of a prenuptial agreement is familiar to most people — an agreement that a couple can enter into before their marriage that can provide how property and debt will be distributed in the event of death or a divorce. It can also provide for paying or waiving spousal support. But what exactly is a postnuptial agreement, and why would anyone want one?

A postnuptial agreement is an agreement that a married couple can create to do the very things that a prenuptial agreement can do in terms of spousal support and distribution of property and debt. While you can include provisions about child support and custody, those provisions would still be subject to a court’s determination as to the best interests of the children.

Provisions regarding children aside, pre- and post-nuptial agreements will be enforceable if validly executed and the following factors are met: 

• The agreement provides benefits for both parties. 
• There is full and complete financial disclosure.
• Both parties have had the agreement reviewed by an attorney.
• There is no fraud, duress or undue influence.
• The agreement is properly executed in the same manner as a separation agreement.

The main reason why a couple would want to execute a postnuptial agreement is that it can be a way for them to continue the marriage. They can be going through a difficult time, and it’s possible that having financial matters settled can help them feel more inclined and comfortable in working with a mental health professional to remain married.

Here are some situations where I have seen postnuptial agreements benefitting a couple:

{4 minutes to read} I often receive phone calls from potential clients telling me that they have settled everything and just want me to write up their agreement. When faced with this request, I explain that this is not what I do and why mediation would still be important even if they have discussed and agreed upon terms. 

Terms that were Not Addressed

You May Not Be Aware of the Law

You can find New York’s child support and maintenance calculators online, but you may not know what to do about income over the caps. Or that a budget is the best way to determine if the support calculations will be appropriate in your case.

In terms of property, you may believe that something is separate or marital based upon what makes sense. However, that may not be the case in the sometimes arcane application of the Equitable Distribution law.

Of course, you may opt out of certain provisions of New York law, but you do need to know what the law provides before you can consider doing so and make an informed decision.

You May Not Have Thought about the Future

In mediation, you will be asked questions that will test what you have agreed upon against changing circumstances, such as: 

• What will happen to support if one of you loses your job or makes significantly more money than you are making now?
• What happens with your access plan as your child becomes older?

It is important that your Agreement encompass as much as possible in terms of changing circumstances so that you never have to return to mediation, or even worse, go to Court.

I think it can be helpful for clients to discuss some terms on their own if they are able to have productive discussions. Those discussions can enhance the mediation process, but they don’t replace it. Divorce Mediation is more than just agreeing on terms and writing them into a Separation Agreement. It is a process that ensures that you understand the legal and practical implications of the terms of your agreement, as well as both of you having your needs and interests met by those terms. 

{3 minutes to read} I understand that there are some mediators in favor of mediation via email. Those that I have encountered are conducting commercial or other multi-party mediations. The positive aspects include: 

• easier scheduling;
• parties from other states, or even countries, can participate without travel or time zone constraints;
• parties can take time to draft an appropriate and more reasoned response; and
• parties can easily find information from prior “conversations.”

It’s been my experience in family mediations, though, that mediating via email is problematic.

Of course, I use email for communicating to clients at the same time in terms of scheduling, the initial forms and letters, and sending drafts of agreements. To actually have substantive discussions though, mediation via email has not proven productive.

A lack of nuance and intent.

Partial or non-responses are given.

In an email, it’s easy to respond only to those comments/requests you want to and ignore what you do not want to answer. I have read email chains where the parties seem to be having completely different discussions. An email can begin with a party raising three points but the response only references point 2. The reply then ignores the response to point 2 and brings up point 4, and so on and so on...

The responses are not in real-time.

In the long run, it costs you more in fees.

It takes billable time for your mediator to go through the email chains and try to piece together what, if anything, has been resolved. Invariably, there will be a point that is missed or a response that is not clear when the mediator summarizes the numerous emails. That can then start the whole process over again.

If there are issues that come up in between meetings, I am more in favor of scheduling a phone call. Then, when necessary, I can intervene and be sure that everyone understands one another and the agreements that are being made. 

My previous two videos on Child Inclusive Mediation discussed the child interview and the parent meeting. In this video, we look at the parenting plan that can be created as a result of the issues and concerns raised by the child consultant’s interview of the children. This plan is not a legal document, but an agreement between the parents in their own language which they can start to use immediately.

In this video, we discuss the step when the child consultant comes into the mediation and speaks to the parents about their interview with the child. Parents don't have to be afraid that they are going to be judged in the meeting, or that anybody is going to be accusing them of being bad parents because they are having a conflict with their co-parent. The mediator and the child consultant will work together to make sure that the parents feel comfortable in the process and are not being judged but supported.

You probably haven't heard about Child Inclusive Mediation because it's not that prevalent in the United States. In Australia, where the process was developed, it is used in both mediations and high-conflict litigated cases and has proven to be very successful. 

If you're concerned that you and your co-parent will have some difficulty in implementing the terms of your parenting plan, it's a good idea to include the name of a parent coordinator in your agreement. Having a pre-determined advocate on hand who can help you with that conflict is a good idea for many reasons.

If you would like more information about mediation, prenups and family law, check out my website — ClarePiroMediation.com.

{2 minutes to read} Like everyone else in the world, I looked forward to 2021 and the opportunity to put 2020 behind me.

While we all hoped that the new year would bring something better — in health, in politics, and in regaining in-person connections to friends and family — of course, nothing changed at the stroke of midnight. And then I thought about expectations.

The meditation teacher, Joseph Goldstein, speaks about “the next pleasant thing.” When we find ourselves constantly looking for something that will give us pleasure, he asks us to remember that like all things, it will be ephemeral. Think about pleasant events in your past and the amazing feelings they generated. Then recognize that those feelings, like all emotions — whether pleasant or unpleasant — passed.

Goldstein suggests that we can look forward to good things happening and to making changes in our lives, without depending upon them for our happiness or being unhappy if they do not occur. We can enjoy the pleasant events without clinging to them which will allow us to fully experience those events. Then, like all emotions, which by their very nature are fleeting, they will always remain as part of our experience.

In terms of expectations, Joseph Goldstein suggests starting a day with an intention — intend to be mindful of your present experiences instead of getting caught up in expectations of what might and might not occur. This can help you avoid getting derailed if something doesn’t meet the expectation.

And if you’re looking for intentions that can help you make a change in your life, in addition to being present, I refer you to my meditation teacher, Cheryl Brause’s 2019 post, “Say Goodbye to New Year’s Resolutions” which may be equally helpful in 2021!  

{4 minutes to read} The other day a friend told me about a conflict she was having with another person and how that person behaved towards her. While the other person’s actions were pretty awful, there was something in the back story she described that made me think there was a misunderstanding and possibly an incorrect assumption of the other person’s motives.

To my friend, the other person was acting spitefully and just being mean spirited. I gingerly brought up the possibility that maybe the other person was actually feeling hurt and left out. My friend was understandably reacting to the bad behavior. But when she took the time to consider this different motive, the insight was helpful to her in terms of being able to move past the incident and lose some of her anger, even though she still did not condone the other person’s actions.

In mediation, I see the positive effects of understanding, as well as the negative effects of refusing to try to understand the other party.

The other person’s motivation may not be what you assume.

With the very high emotions that arise in a divorce mediation, it is natural to ascribe a bad motive to someone who has hurt you:

They want the china just because I want the china, and they don’t want me to have it.

By asking why they want the china and really focusing on the answer, you may learn that it is because when they were growing up, on holidays their family never had anything as grand as that china, so it has special meaning to them. That doesn’t mean you have to give up the china, especially if you have an equally fond memory that leads you to want it as well. But without the negative assumption about their motivation, it makes it easier, or at least less resentful, to attempt a compromise.

Understanding doesn’t mean that you forgive the other person.

Forgiveness is hard. It can take time and may not be attainable. Understanding is a first step, and even if it’s the only step, understanding can help lead to the resolution of your separation which is your primary goal.

Understanding doesn’t mean that you agree with the other person.

My friend may have understood why the other person acted as they did, but that doesn’t mean that she agreed with the action they took. But acknowledging to them that you understand and explaining your own deep feelings may help you both to come up with a proposal that will be in your mutual interests.

So, when your mediator:

• asks you a lot of “why” questions about what you want;
• seems to restate what you each said;
• asks each of you if they (as the mediator) understood you correctly; and
• maybe even asks if you could explain the other’s position,

They are trying to help you to understand. And that is a very valuable first step in reaching a resolution.

{4 minutes to read} I recently attended a virtual lecture presented by Maryellen Dance, LMHC from Rochester, NY, focusing on fact versus fiction in terms of anxiety.

She had some very interesting suggestions to deal with anxiety that may be helpful, especially when you’re in a particularly anxious time of your life like separating from your spouse. Your fears of the future, or focus on the past, can hinder your progress in a mediation if they hijack your ability to be present in meetings and make proposals that are likely to lead to resolution.

Anxiety is a Pathological Liar 

It’s so easy to become entrenched in the spiral of anxious thoughts because anxiety does an amazing job of masking the present reality. And the longer that it’s been lying to us, the more difficult it is to see the irrationality behind it.

Dance proposes that there is an easy counter to it — reality and facts. You will need to be steadfast in your approach and repeatedly acknowledge the truth versus your anxious thoughts.

And if there is truth to your concerns, recognizing the anxious thoughts can help you to address the reality of your situation more positively as opposed to ineffectively reacting to the anxiety.

Anxiety Can Make Us Believe It’s a Good Thing 

But if I don’t worry about “x,” then “x” will happen. From personal experience, it takes much effort to step back and discern if your anxiety or worrying is helping. Is it productive in the sense of preparing for an actual event that will happen or motivating you to better attack a problem? Or is it just endless worry that keeps you from actually doing anything worthwhile, while negatively impacting your health and well being?

Dance suggests that when you recognize that you are beginning to become anxious, ground yourself in the present moment so you can then ask yourself, “are my anxious thoughts helpful?” For example, if you are anxious about your ability to pay your expenses, does that anxiety lead you to constructive action such as making a budget and figuring out a path to increasing your income? If these thoughts are not helpful to achieving an outcome, then try to recognize them as just another emotion that will pass.

Think About the Present 

Because anxious thoughts are by their nature a litany of rehashing past events, or anticipating the most awful outcomes that may happen, they prevent you from being present in the moment. While practicing meditation will help you to ground yourself more easily in the present, there are other steps you can take to bring yourself out of your head and into the present.

First, you have to recognize your spiral. As soon as you can see that your thoughts are taking you down that familiar road, stop. Dance recommends that you literally stare at an object in the room to bring you into the present moment. And take a few breaths to help you focus. 

Finally, we all have thoughts that make us feel anxious. That doesn’t mean that you should define yourself as an anxious person — which will just add another concern to make you feel even more anxious. Instead, try to recognize that these are just temporary, uncomfortable thoughts that will come and go. Having occasional anxious thoughts is normal. Letting those thoughts get in the way of being and living in the present moment is not.