{3:00 minutes to read} One of the things you will be asked to address in mediation is what, if any, changes will be made to child support.

In a previous post, I wrote about New York’s statute that would permit parties to file for a modification for support under certain circumstances. But, if you’re mediating now, you certainly would want to avoid having to go to court to modify child support in the future. It’s best to include the changes to support that you agree to make when you are drafting your initial separation agreement. Some of the things to consider:

How long child support will be paid:

A child graduating from college in two years is a different situation than if a child is six years old. You may be willing to keep the amount of support stable for an older child and want to build in more frequent changes if a child is younger.

How you will make the recalculation:

If you both have W2 incomes, you can make a new calculation at the agreed upon time or event under the Child Support Standards Act (CSSA) based upon your incomes at that time. Your agreement can include language about how to make the calculation and the cap that you agree to use. If that is too confusing, you can find the formula online as well; just be sure to make the proper deductions.

If one or both parties’ incomes are difficult to determine:

Sharing information about your income:

In the past, as a lawyer it was very uncommon for me to either attend a mediation with a client or have clients bring their attorneys to a mediation with me. That was something that I always felt was a rarity in family mediation. Since I’ve become a divorce mediator, I’m not sure why, but that dynamic seems to be changing. I’m finding these meetings to be productive, and the attorneys’ presence to be helpful.

{3:30 minutes to read} There are two diametrically opposed views as to the value of an attorney versus a mediator. In terms of settling a matrimonial matter, each believes the other is not necessary.

“There is no need for a mediator.”

• Not all attorneys are collaborative, and some take their charge of a zealous advocacy to the extreme. They may settle cases, but they may also refuse to acknowledge any merit to the other party’s position. And if the client is similarly unwilling to engage in meaningful understanding in an interest-based discussion, then the likelihood of reaching a substantially mutual agreement is diminished. 
• Since most negotiations take place between attorneys, clients are left out, which compromises their right to make good decisions for themselves.
• The costs are much higher and the process can be considerably longer.

“There is no need for an attorney.”

• Some clients need help in advocating for themselves. 
• In cases in which a client knowingly relinquishes a right, it would help to ensure that the agreement would be upheld if that party later tried to void it. 
• A mediator cannot provide legal advice, so certain clients may benefit from an attorney consultation for advice, as well as help in terms of proposals that could be made.

If clients are truly committed to the terms of an agreement, no attorney should be able to dissuade them. If the client is susceptible to an attorney’s derailment of the agreement, then I would question the client’s commitment to the terms of the agreement in the first place.

In my view, two attorneys most definitely can settle a matrimonial dispute, but that is not anything like the process of mediation. I believe that the mediation process has benefits that cannot be achieved in an adversarial environment. I also believe that an attorney can have a positive role, even if the attorney is not someone who is committed to the practice of mediation, and that it is up to the client to decide with whom to consult. 

{3:00 minutes to read} I’m writing this after a particularly stressful December. I anticipated that the rush to complete separation agreements by the end of the year would make for an unusual amount of stress. What I didn’t count on was the perfect storm in terms of anxiety when that unusual work stress combined with all that I needed to do in preparation for the holidays. No one, including myself, wanted to be around me for any length of time.

Clearly, the need for certain clients to have their agreements signed by the end of the year took precedence over my traditional holiday preparations. My choices were:

• Not to do the same kind of entertaining and being with friends and family I had done in the past; or
• Relax some of the standards I felt I needed for a "perfect" holiday celebration.

Thankfully, I decided I didn’t want to miss out on all of the joy of the season simply because I couldn’t do all of the shopping, decorating, or cooking to my arbitrary standard of “perfection,” and was able to thoroughly enjoy my time celebrating with friends and family.

That decision brought to mind the phrase, “the perfect is the enemy of the good.” Of course, trying to do our best should be the norm in all that we do, whether it’s in what we do for a living or in our personal lives. But is striving for perfection at all costs, what we should be doing at all times?

• What if you refuse to try something new because you may not be perfect at it? 
• Or what if you have so many rules as to the perfect significant other that you don’t give a person the chance to show his or her strength and character?
• And how do you know you’ve achieved the perfect home/job/relationship anyway? Is it you who decides what perfect is? Or, is it some magazine, movie, or self-help guru?

Just think about all of the fun and companionship you would miss out on if you didn’t entertain your friends and family because you weren’t the perfect cook, or had the perfect home with all of the accouterments found in leading magazines.

Even more significantly, consider perfection in terms of a significant other. Why rule out a potential person just because he or she doesn’t meet a list of standards that you have determined are necessary to the perfect spouse? No one is “perfect,” and dismissing someone out of hand without getting to know him or her could prevent you from meeting someone who might actually be everything you really want.

So, in going forward, I intend to make a conscious effort to strive for the best instead of being on a perpetual quest for the perfect. 

{4:00 minutes to read} In his book Lying, Sam Harris explains how a seminar he took as an undergraduate led him on a path to believe that any lying, even what most may deem “a little white lie,” is harmful. The seminar was called The Ethical Analyst, and it focused on the question “Is it wrong to lie?” In the course, he learned that lies damage personal relationships and violate the public trust, whether they are big or small.

The book caused me to reflect much more on the justifications we make for being less than truthful. I’m referring to how we think of ourselves as basically honest people even though we may engage in a little white lie about something small to spare another person’s feelings. According to Sam Harris, there is no such thing as a lie without consequences, and the sparing of feelings is not the result of a lie.

Think About It From the Other’s Perspective

We tend to think that a lie over a trivial matter, such as feigning illness if you don’t want to meet with a friend, is just done to protect the other person. But when seen from the other’s perspective, it would be perceived as a betrayal of trust as opposed to an act of kindness.

A Little White Lie Is Still a Lie

When a person is dishonest, they are lying, and that causes a loss of integrity. It also denies the other person the opportunity to know the truth and perhaps act differently. Think of the classic question “Do I look fat in this outfit?” We all laugh and say the answer is always no, but by lying about how you really think the person looks, you potentially prevent them from dressing in a way that would be more flattering.

Unwarranted Praise

There is another familiar lie that we may think of as harmless and sparing the recipient from unnecessary embarrassment. This is when you tell someone that he or she performed well or did a good job when you really don’t think they did. Telling this lie is unfair to the person and, more importantly, it denies them the opportunity to receive criticism that could actually help them to improve their performance.

The Accumulation of Falsehoods

It’s easy to remember the truth, but much more challenging to remember to whom you told what lie. And if you tell a lot of little white lies, you have to remember the falsehoods long into the future. For example, the fact that months ago you said you had the stomach flu and couldn’t go to a party may be unremarkable to you, but not if your friend who had the party asks if you got over your illness, what caused it, and how you are feeling now. This, of course, can lead you to tell yet another little lie or lies. It is daunting for you and if caught in the lie — even a little one — it can cause others to lose trust in you.

To be clear, this post isn’t reflecting upon pathological or serial liars, who lie about things big, small and meaningless. These types of blatant lies by a leader out to manipulate the public and stoke fears in people are devastating. And on a personal level, I see the harmful effects of major lies between spouses when I mediate. We usually can’t do anything about those situations, but the little lies count too, and those are entirely within our control.

{3:00 minutes to read} In many cases, clients decide to separate as a mutual decision and come to mediation without assessing any blame or fault on the other. In many other cases, though, one party feels either that the other party is to blame (i.e., if the other person had an affair) or that the other person is at fault because he or she is the one who wants the divorce against the wish of the other to stay married. In those cases, a pervasive attitude of blame or fault can derail the mediation or at the very least make it a much more difficult process.

Assessing Blame

It’s understandable for an aggrieved client to want to explain why he or she feels that the other person is responsible for the demise of the marriage. But it’s not helpful if blame and the past is all that person wants to address. Mediation is not marriage counseling and since you are there to reach the terms of a settlement agreement, focusing on the past is not going to help you move forward.

Feeling That You Deserve More

It’s also understandable for someone to feel that since he or she wants to stay in the marriage, then it’s up to the other person to make all of the concessions. Not only is that not what the law provides, but more importantly, succeeding in your desire to make the other pay would not be in the best interests of you or your family.

Remember that your children will see each of your lifestyles when you separate. It’s not in their best interests to see one person’s lifestyle not change at all, while the other cannot afford to make ends meet and is living in very reduced circumstances.

Punishing the Other Is Not the Answer

As much as you may want retribution either for behavior that ended the marriage or just because he or she wanted to move on while you wanted to stay married, battling it out may not provide you with the satisfaction you think it will. You can make the other miserable or gain an advantage in terms of more property or support, but that may not help you and your family move forward.

The focus on past wrongs and letting aggrievement govern your decisions above all else tends only to prolong the process and make it much less likely, if not impossible, for the healing for you and your family to occur.

Instead, advocating for yourself and making proposals that work for you and your family is a positive step to take towards the future.

If they decide to go forward with the bankruptcy first, they will have the benefits of:

• Less expense;
• Debt issues getting resolved before the mediation begins;
• Alleviating any issues with transfers of assets before a bankruptcy filing that may be construed by a bankruptcy court as fraudulent. 

On the other hand, if it’s better in your case to divorce before a bankruptcy filing, then a consultation with a bankruptcy attorney will enlighten you in that regard as well.

Clients understandably are concerned that a bankruptcy will have a serious impact on their credit. That is a reasonable fear, but you can take steps to start rebuilding your credit immediately — and you should start seeing improvement in your credit score after a few years.

I’ve also seen clients concerned about the negative connotation of bankruptcy and feeling embarrassed that they are in that position. That’s a common but unfortunate perception, and it’s not in keeping with the theory under which the bankruptcy laws were created. A bankruptcy is designed to give a fresh start to someone who had some unfortunate circumstances in which debt became unmanageable. It could be because debt accumulated from a medical condition and lack of adequate insurance, or a job loss. It could also be because of poor but not dishonest decisions that led to them being in a debilitating financial bind.

I recently saw how bankruptcy could serve the purpose of a fresh start to a separating couple. I suggested that they consult with a bankruptcy attorney at the first meeting since they were unable to pay their mortgage and other debts, including a judgment lien against their house, but did have some equity in the house.

They decided to file for bankruptcy, and work out a modification of the mortgage in the bankruptcy court (which is a much easier process than trying to work out a modification on your own). The judgment lien will be unenforceable against the property due to a failure of the creditor to file a claim in the bankruptcy court. The rest of their debts were manageable for them, and they can enter into a payment plan under the Chapter 13 rules. Had they not consulted with a bankruptcy attorney, their home would have been foreclosed, and their equity lost.

We hear so much about how big corporations take advantage of bankruptcy laws that we lose sight of the very valid reason for a bankruptcy filing — to give a much needed helping hand to people who are suffering from overwhelming debt.

{3:30 minutes to read} It is likely that mediation can result in a negotiated agreement even if you mediate after you have entered litigation or tried negotiating through attorneys. But after having worked with couples who have first engaged in an adversarial process, I encountered distinctive behaviors that arose in the mediation which, while not unsurmountable, needed to be addressed.

Of course, I can’t definitively state that it was the initial adversarial process that made negotiations more intractable and it very well may have been the nature of the dynamics between the couple. But I believe that the following mindsets, which are exacerbated in an adversarial process, will make a subsequent mediation more challenging.

Unrealistic Outcomes Assured By Your Attorney

If your attorney overstates positive outcomes, your view of what is likely to happen in court is skewed. Then, in mediation, you believe that what objectively may be considered to be a reasonable stance by your spouse is so far and above what you were told that a court would do, that you feel your spouse is taking advantage of you.

Positional Bargaining

Heightened Anger

There can be nothing worse than seeing in writing, accusations of behavior on your part that you believe are exaggerated at best, and patently false at worst. But this is what happens in a process where blame is focused on the other side, which, of course, leads to denials and counter accusations from the accused party.

Questioning All Motives

If you both are engaged in reaching a resolution most beneficial to yourself, it can cause you to distrust any offer made, even if it appears to be something favorable to you. Since you have been battling with your spouse, you question why he or she would give something up, and suspect the worst.

So imagine that these are some of the attitudes before you start mediation, a process in which you are being asked to focus on interests, not positions; to make proposals, not assess blame, and that you are there to accept a settlement that works for both of you. There is a lot of work that will need to be done before you may be willing to engage fully in such a process.

And that’s okay. Mediation can still work, but recognize the hurdles you face and try to engage in the process fully to combat the remnants of the adversarial process. Better yet, before you consider an alternative process, make mediation your first choice.

{3:30 minutes to read} I had a meeting recently with a couple, and when they left, I felt sure they would not be returning for another meeting.

The husband didn’t want to separate, didn’t want to leave their home, and couldn’t imagine not having the children with him at least half of the time.

The wife was insistent on separating, be it through mediation or through attorneys, wanted to be the primary custodial parent, and insisted on the sale of the home.

Their financial situation was very challenging, which only served to make the husband more resolute that they should just stay together. Both were angry, sad and anxious about their futures.

Custody and what to do with the house were clearly the biggest issues, and we addressed them first. With questioning, the parties explained their points of view, their interests were framed and we generated options. But they both steadfastly continued to be positional, and neither would consider an option other than what each wanted when they began. I sent them a summary of the meeting and homework, but I suspected I would not be seeing them again.

A few weeks later, I was surprised when they scheduled a meeting. I was even more surprised when they arrived at my office, with an energy between them which was palpably different, in a positive way.

The wife asked if she could start, and she began by saying that when she read the summary she realized that she hadn’t given enough consideration to the emotional significance of the house for the husband. She recognized that ending the marriage and asking him to give up the house immediately was more change than he was ready for. They were then able to agree upon a plan for the house that both could accept.

Then, when we moved on to the issues of parenting that the husband had refused in the last meeting, he admitted that he now agreed with the wife that equal custody at this point was not best for the children. He was willing to try a different access plan initially, and they both agreed upon benchmarks when custody could be revisited.

To my further surprise, it was clear that they hadn’t discussed anything on their own in between our meetings. Rather, upon reflection of what the other said during the meeting, they each came to an understanding of the importance of the issue to the other. That kind of understanding likely would not have been possible if they had been speaking through their attorneys rather than to each other.

Understanding may not happen in the moment and you can have a contentious first meeting, but hopefully with an opportunity to reflect, this level of understanding can pave the way for cooperation and agreement. 

{3:00 minutes to read} It’s an admonition that many a Hallmark holiday movie has been based upon  ---    "Be Careful What You Wish For."

The usual plot is that someone wakes up in the life she always dreamed about, only to find out that the life she had was so much better. In the end, she gets to go back to that wonderful life she never fully appreciated and everything is grand after all.

It would be nice if we got those chances in real life, but since that is not likely to happen, the adage is one we need to consider on our own without the benefit of otherworldly intervention. And not just in terms of being grateful for what we have, but also in terms of being careful about what we seek and why.

I see clients who wish for things that:

These wishes for changed circumstances can be emotional, such as fervently wishing that they can stay with the other person, or financial; wanting the other person to lose everything and suffer financial ruin.

Reality testing can work with the practicalities of financial circumstances, such as by doing budgets and demonstrating that the inability to pay basic expenses for either party will not work for the family as a whole. But the emotional component — the desire to reunite or to deeply hurt the other person, remains.

The dream or intervention that happens in movies would be a quick and easy way for you to see that what you may be wishing for isn’t such a good thing after all.

In real life, you need to do the hard work it takes to come to that realization, and admittedly, it is a painful process. You have to come to terms with why you want what you want, and what would be a more healthy outlook. Therapy, talking to friends, and being willing to enter into new experiences with an open perspective will all help. Denying the reality of your situation or hanging onto negative attitudes to make the other person suffer will not help and can delay your ability to move forward in a positive way.