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.

{3:00 minutes to read} In the last post, I addressed the designation of beneficiaries of your life insurance in order to ensure the continuation of child or spousal support. While the continuation of support is important, there are some other issues about life insurance coverage that may need to be discussed in mediation.

Employer-Provided Life Insurance

Individual life insurance policies owned and paid for by the parties provide the most control and flexibility in terms of maintaining insurance coverage. However, sometimes you may not be able to afford premiums on an individual policy, or may not qualify for life insurance coverage other than through a group plan provided by an employer.

Some of the things to discuss in mediation:

• If the employer-provided policy amount offered without charge is insufficient to provide the support necessary, can you purchase additional coverage?
• What will happen to your insurance coverage if you lose your job?
• Can you consider a combination of a term policy you own plus employer-provided insurance coverage?

What if the person paying support is unable to qualify or afford life insurance?

You may have a situation where a person’s health can make life insurance difficult to obtain or unaffordable, and there is no or insufficient employer life insurance coverage available.

If this is the case, you can consider leaving assets, either by will or beneficiary designations, to ensure that there are funds available to the surviving parent for the support of the children (or to the spouse if it’s spousal support that is being paid). The same considerations on naming the beneficiary as discussed in Part I will need to be considered in this case as well.

This may not be optimal since assets may decrease over time, but if you have explored all options and there is no opportunity to obtain sufficient life insurance coverage, it is something to consider.

Both Parties Need Life Insurance Coverage

You might think that life insurance is only needed for the person who is paying child support. However, there are countless contributions the person receiving support provides and many things he or she pays on behalf of the children. The surviving parent will need a policy of their own to cover incurring additional costs for the monetary and non-monetary contributions that the deceased parent was making on behalf of the children.

Request for Proof

Whether you are providing for life insurance or making beneficiary designations, it is customary for a separation agreement to outline a procedure whereby each party may request proof that the proper designations are made and premiums are paid.

Life Insurance — a seemingly mundane and boring topic, but one of great importance to protect child/spousal support. 

{4:00 minutes to read} Life insurance is not a topic most people are eager to speak about, let alone if you are separating. But life insurance is a topic you should be prepared to discuss in your mediation.

Under New York law, a judge may order a party to obtain and maintain life insurance coverage naming as beneficiaries either the children (for child support) or the spouse (for maintenance) for so long as the party is obligated to pay child support and/or maintenance.

While you don’t have a judge making orders in mediation, you do want to be sure that there are provisions for life insurance in your agreement if spousal or child support are being paid.

Here are some things for you to consider:

Naming the beneficiary

• Your spouse needs access to the life insurance proceeds because he or she will no longer have your contributions towards the support and care of the children for their direct and indirect expenses.

However, you may not feel comfortable naming the spouse as beneficiary. And even if you have the utmost trust and confidence that the spouse will use those funds solely for the children, unexpected things could happen, such as if your spouse remarries without a prenuptial agreement or dies without appointing someone to take care of the children — and the funds meant to support them. Events of this type would put those funds at risk. 

• You wouldn’t want to name minor children as beneficiaries of large sums of money for obvious reasons. Moreover, Surrogate’s Court would appoint a guardian to oversee any money they receive, and that guardian will need the permission of the court in order to use the money. This means your spouse may not be able to access those funds for day-to-day expenses when needed. 

• One alternative could be to designate your spouse as the custodian of a Uniform Gift to Minors Act (UTMA) account. The money would belong to the children but be under the control of the spouse until the children reach age 21, at which time the custodian would need to transfer the funds to the child. 

• Another alternative, by which you could exercise more control over the use of the funds and keep them in trust until the children are older than 21, would be to create a life insurance trust. Appoint your spouse as trustee to manage and use the funds on behalf of the children, including the ability to use the proceeds to the extent that you would have been obligated to pay child support and other expenses on behalf of the children.

In Part II, I will address options if you are unable to obtain life insurance and why it’s important for both of you to have it, even if only one of you is paying child support. 

{3:40 minutes to read} There is a mindfulness meditation that I enjoy doing that focuses on the inner critic we all have — that voice in your head that tells you that you messed up, made a fool of yourself or just don’t know what you’re doing.

The suggestion is to create a picture in your mind of the critic to aid in recognizing that it is your inner critic speaking so you are not derailed. (My favorite is of a stern judge in dark robes frowning from a tall bench.) The advice is not to fight your inner critic because it’s a losing battle and not to engage your inner critic because it can take you down a path not worth pursuing. Just recognize it, acknowledge it and move on.

Sounds good, right? But it’s a lot harder to do when your critics are physically in your face and telling you that you are making a mistake. They are especially difficult to ignore when they are your friends and family who love and care for you. And they do mean well when they tell you that you are being taken advantage of in your mediation and should never agree to that settlement term.

I recently had a client say that she was scolded by a family member for agreeing to a certain term that was unfair and that she needed to take action, stand her ground, and go to court where she would get all that she was entitled to. The client responded that she had her reasons for agreeing to the term, that it worked for her and she didn’t want to discuss it anymore.

But then, like the inner critic, the thoughts stayed in her head and caused her to question herself. Thankfully she mentioned it at the next meeting.

We reviewed the give and take that led to that term being agreed upon by her. We also discussed the uncertainty of proceeding in a different forum than mediation and the lack of guarantees that one would “get all that you’re entitled to.” She reiterated her commitment to mediation and acknowledged that the measure of an acceptable settlement that she wanted to use was not the same as her family member’s.

I had another client who told me she discussed the criticism made by a friend with her attorney. Fortunately, the attorney put it in terms of the cost to the client of the money in dispute versus the costs of going to court, both monetary and emotional. She and her attorney agreed it wasn’t worth it.

Understand that well intentioned friends and family who were not in the room with you, may not fully understand the process and what you seek. If you truly believe that the term is something you understand and can live with, don’t fight or engage with them. Recognize the criticism, thank them for their concern and move on with your life. 

{3:30 minutes to read} I tend not to use the word “settle” with clients in mediation. Although to settle is defined as “to reach agreement or decision...,” I prefer to use the phrase “to agree upon terms.” To me, to agree upon terms in mediation is quite different from settling on terms which have been hashed out by attorneys in an adversarial setting.

In an adversarial setting: 

• Each attorney’s role is to advocate for their client to achieve the best possible outcome for him/her by outmaneuvering the other. 
• To settle under those circumstances could result in more favorable terms for one party because he/she had the more competent, persistent and/or aggressive attorney. 
• Who “wins” the better settlement may not even be based on who had the better set of facts or on whose side the law fell, but on who had the more skilled attorney (see above). 
• Clients may later feel that at the end, their attorney pushed them to settle, and that they had no choice and may later be unwilling to abide by those terms.
• Clients may not feel positive about the ultimate separation agreement based on the settlement made because the whole process revolved around arguing for their position — and then feeling that they “caved in” if their position was not achieved.

In mediation:

• The clients are advocating for themselves in a process that puts the focus equally on the needs and interests of both parties rather than the positional bargaining in a traditional negotiation.
• Since the clients are the decision makers as to the terms agreed upon, the separation agreement has a greater likelihood of being adhered to and lasting.
• Mediation can be an empowering process where clients are encouraged to get the resources they need to make the best decisions they can, and to fully comprehend the matters being discussed.
• The clients have an understanding of what is important to the other so that the reasons why they have agreed to a certain term are clear.
• No one is pushing the clients to accept any term, and even if a client agrees to something that objectively may not be positive for him or her, the client has decisively and deliberately done so.

Sadly, sometimes people feel that after a hard fought battle, agreeing to settle without a trial means that they have lost and the other person has won. Settling could be perceived as negative, especially if you settle on terms that were different than what you anticipated in the beginning. And that negativity is reinforced if you feel that you have no choice but to accept the terms.

This passive or negative idea of settlement as a loss is the antithesis of mediation; a process into which you both enter with the goal of reaching an agreement that is acceptable to you both. That is why I’m very careful to say “agree upon terms,” as opposed to “settlement.”

{3:42 minutes to read}  One of the major benefits of mediation is that parties make the decisions about their lives and the lives of their children. Self-determination is an awesome responsibility in that regard, and couples should be prepared to accept that responsibility when choosing to mediate.

To me, this would mean that parties should make sure that they have all of the resources they may need in order to make the best decisions they can.

Choosing the Mediator

After you both decide to mediate, this is clearly your first joint decision in the process. You will want the mediator to be experienced and have a practice dedicated to mediation. You will want one who attends continuing education and who is active in the mediation community. You also want a mediator that you both feel is able to:

• Not take sides;
• Speak about complex terms in a manner you both understand;
• Show patience and understanding to both of you;
• Be non-judgmental.

To determine that the mediator has the qualities you seek, ask for a consultation. Many mediators will offer a brief consultation at no charge, so take advantage of that.

Other Professionals

To help them in decision making, I encourage parties to get as much information from as many resources as they can. Not all clients feel this is necessary, and in terms of self-determination, that is their choice to make and responsibility to assume.

For those who want to seek guidance from other professionals to assist in making decisions about the various aspects of the mediation process, they can consult with:

An Attorney

• To learn their legal rights and responsibilities before they begin mediation;
• To discuss terms of settlement that they can propose;
• To, if all parties agree, accompany them to the mediation;
• To review the final agreement.

A Certified Divorce Financial Analyst (CDFA)

• To get help in making a budget and assembling financial information;
• To educate themselves on financial matters;
• To, if all parties agree, accompany them to the mediation.

A Divorce Coach

• To manage and contain highly charged emotions so they can focus in meetings;
• To address a specific situation like an affair;
• To recognize triggers that can derail a meeting, and develop a strategy to avoid reacting to them.

A Child Specialist

• To help determine what is the children’s best interests;
• To help create a parenting plan that will encourage the developmental capabilities of the children;
• To meet with the children, if appropriate, and ensure that the children have a voice in the decisions.

In many ways, mediation can be more difficult than just handing everything over to an attorney. Parties have the utmost responsibility in the process, as it should be, since they are the ones who will be living with the outcome. Be sure to get all the help you possibly need so the decisions you make are the best ones for you and your family.

{3:00 minutes to read}  I’ve had clients who completed their mediation and signed an agreement in a few months and others who take years to complete a mediation. While complexity and the amount of conflict surely play a role, there are clearly other factors in play.

Not ready for the process yet.

It’s unusual for both parties to be in the same place in terms of accepting the end of the relationship. That said, both may agree to move forward with the separation because one of them wants to divorce, and they proceed at a normal pace. Others, though, even with a mutual agreement to begin to mediate, may only schedule meetings sporadically, with neither spouse pushing it.

As long as the delay is mutual, the pace is up to the clients. However, it becomes a problem when one wants to move more quickly than the other, which itself can become another issue to mediate. (I’m Ready to Get Divorced But My Spouse Isn’t)

A problem that seems overwhelming.

Sometimes, the passage of time can help to resolve what appears to be an unsolvable situation. I’m not sure if it’s even deliberate on the part of the clients, but putting the mediation on hold has helped some clients find resolution. For example, maintaining the status quo by living together and combining incomes can help to resolve a question of how to separate when one is unemployed, or there is too much debt to afford to live separately. Obviously, delay doesn’t work in all cases, and would definitely not be viable when it’s intolerable for the parties to live together. For some clients, however, putting things on hold can help.

Life happens.

It may be that the clients are getting along well, have no issues with paying their expenses (even if they are living in separate households), and are managing sharing time with their children without any conflict. Finalizing their separation is important and both know they will not be reconciling, but completing an agreement is not as urgent to them as other pressing matters.

As the mediator, I will follow up with clients from time to time to see how things are going, if they are ready to schedule, and if the delay continues to be mutual. At the same time, I recognize that the timetable is one of the many determinations that are in the purview of the clients.