If you're going through a divorce and you own your home, that home is going to be looked at as an asset to be divided according to the laws of New York.

To one or both parties, the marital home often means something more than just a place to live. It represents a sense of continuity and something that is familiar which can lead one or both of them to want to keep it.

Would you want a court making this decision for you, or would you prefer an interest-based discussion in mediation? 

{3:30 minutes to read} In a previous post, I wrote about the enormous impact that a sincere apology could have on another person. There is, though, a very significant step that must come first.

Taking Responsibility for Our Actions

While it’s true that many actions taken are in reaction to something someone else did or said, that doesn’t automatically give you a pass to behave badly. For one thing, you may have acted under a misinterpretation of what the other did. And, to channel my mother, “two wrongs don’t make a right.” While It’s understandable to become focused on the fault of someone else, you are still responsible for what you do. 

Keeping in mind that it’s a pretty rare situation in which one person is 100% at fault, it will make it very difficult for you to be willing to compromise at all if you feel you are totally blameless. And that will make for a problematic mediation.

It’s Also Not All Your Fault

As important as it is that you accept responsibility for your actions, it’s also important that you have an objective point of view as to what is not your responsibility to assume. It’s not helpful to lay all blame on yourself, and when I see a client doing that and giving in to the other’s demands out of guilt for an actual or perceived wrong committed, I’m concerned that down the road there will be resentment over the concessions the client made.

I have had clients who were so consumed with guilt that they made poor choices. As the mediator, I can reality test and point out the ramifications of accepting terms that will have serious financial consequences in the future, and have a discussion as to why they are agreeing to those terms — but the choice is always the client’s.

If you recognize that you may be accepting either none or all the blame in the relationship, you can then work on assessing what truly is your fault. Sometimes talking to someone else can help. Once that is established, you can make and accept proposals that are not based on wanting to punish the other or relieve your own guilt.

One of the aspects of divorce is the creation of “blended families” when there is remarriage afterwards that includes step-mothers, step-fathers, step-children, step-siblings, step-grandparents, etc. Navigating these new relationships can be awkward, but the lives of you and your children can be enriched by keeping an open mind with regard to new significant others as this video attests.

{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.