{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. 

{4:00 minutes to read}  After a divorce, many somewhat routine aspects of your life will be changing. It may be hard, but as you move forward with your life, you will have to adapt to these changed situations. In some cases, you may be able to anticipate those situations, and include provisions in your settlement agreement.

During the mediation, being asked about what types of vacation provisions you want in your agreement may come as a surprise. The idea of going on a vacation without your spouse is unimaginable to you, and not seeing your children for a long period of time when they’re on vacation with your ex is unsettling.

Yet, here are some things you can think about in advance to help you adjust to the idea of separate vacations with your children and what terms you want in your agreement.

How Much Time and When 

• Will vacation time mean just the summer, or school recesses as well?
• If your children are in camp, how many non-camp weeks are there, and will this available time be split between you equally?
• How far in advance should notice be provided so you both can make plans?
• Shall you alternate the first choice for vacation weeks to avoid you both wanting the same week?
• If you both agree to more than one week of vacation, are the weeks consecutive?

Travel Outside of the Country

• Should travel abroad be permitted or permitted only if you both agree to the travel?
• Are there certain places to which you believe the children should not travel, even if you agree to travel out of the country?
• In addition to naming certain locations, your agreement can also prohibit travel to a country that is not a party to the Hague Convention (a treaty that provides an expeditious process to return a child if the parent refuses to do so).
• You can also provide that travel is not permitted to a country for which the State Department has issued a Travel Advisory other than normal precautions.
• Who holds the passports? The agreement should provide that whoever holds them will give them to the other parent in advance of the travel, and then that party is to return them with the children.
• What kind of documentation would be required by the airline for children traveling with only one parent? Your agreement should provide that you will each sign any such documentation.

Details of Travel

• Will each of you provide an itinerary when you travel?
• How to reach the children if cell service is not available in the location?
• Shall you speak in advance of the travel as to the time of day you can communicate with the children?

Even though it might be painful to you now, take the time to think through what you may want in the future. If you can’t afford to travel, taking a “staycation” is perfectly fine. The vacation time you spend with your children without the day-to-day responsibilities of work or school is so important, and you should take advantage of that special time.

{3:00 minutes to read}  Why would you want to continue living together with your ex after you sign a separation agreement? Many couples feel that financially, they have no choice but to live together. It could be because they are waiting for the closing on the sale of the home before they can both move out or that they agreed that they could both save money for a period of time if they lived together.

Living together for any period of time can lead to unintended situations and complications, even if the couple seemingly gets along well. In this type of situation, it is best to have your separation agreement include terms for your living together, such as these:

How are expenses to be paid?

• Define joint expenses and separate expenses.
• Will there be limits on personal spending while living together?

If they are going to have separate accounts for their income and then each make deposits into a joint account for shared expenses:

• Outline when and the amount of deposits to be made;
• Determine how deposits will be modified;
• List the exact expenses to be paid;
• Decide who pays what expense.

How long will it last?

If the clients are waiting for the sale of their home to occur, you should discuss what happens if the home doesn’t sell within a certain period of time, such as six months. Do they continue living together or will there be a different plan?

What if one of you can’t take it any longer?

Even if the clients are committed to remain together until a certain date or the closing of sale of the house, one may feel the need to leave before then. Does that person need to continue to pay the same expenses as they had been doing, or just a share of the costs related to the house such as mortgage, taxes and insurance?

What are the effects on the children?

It may be difficult for the children to understand that you are separating but still living together, especially if they are younger. It’s a good idea to have input from a mental health professional as to how and when to tell them what is going on and details as to your arrangement.

Depending upon the circumstances, there may be other terms that should be included in the agreement as well.

Living together after a separation or divorce agreement is signed, is certainly not ideal, but is sometimes necessary. Putting guidelines in place in your separation agreement will go a long way toward making that situation as uncomplicated as possible.

{2:42 minutes to read}  As a divorce mediator, I certainly expect to have clients express strong emotions, including anger. But I’ve encountered a few clients recently who made me recall my earlier post on the difference between anger and bitterness.

The definitions of anger and bitterness are similar:

• Anger: a strong feeling of annoyance, displeasure, or hostility.
• Bitterness: anger and disappointment at being treated unfairly; resentment.

The definitions may be similar, but to me, the emotions themselves are worlds apart.

I see anger as something that is of relatively short duration; a totally appropriate and human response to someone hurting you, or someone you love. Something happens, you get angry, you hopefully express that anger constructively, and it eventually dissipates.

Bitterness, on the other hand, is something that is a little darker and all encompassing. To me, bitterness doesn’t go away easily — instead it festers and begins to infect your general outlook on life.

When I litigated matrimonial matters, I saw that clients who were angry tended to move on with their lives after their divorce. Clients who were bitter, not so much. It always saddened me that clients who “won” and got what they thought they wanted, were still not satisfied, still bitter, and still evoking sarcasm and negativity.

Litigation doesn’t help anyone to move on in a constructive way. Instead, the goal to “win” and exact vengeance, encourages a battle in which holding onto negativity propels one to go to an even darker place. When the litigation is over, those feelings don’t go away, and without the outlet of the battle, those dark emotions prevent one from moving forward.

That is one of the many reasons I shifted to mediation many years ago. Of course, I still see clients who are angry, and yes, clients who show signs of bitterness. However, if you choose to engage in a process that by its very nature seeks to achieve a mutual result and not a one-sided “win,” there is more of an opportunity for the focus to shift from the past to the future — and for the emotions to do the same. 

{4:00 minutes to read}  Separating is a painful and emotionally draining process. Needlessly prolonging the process will only add to that, however, it is within your power to insure that time in the meetings is not wasted. Here are some additional steps that you can take to insure that mediation fees remain reasonable by limiting the number of sessions that are needed.

Know what mediation is all about and why you’re doing it.

Avoid mediating past behaviors.

Avoid sarcasm and derogatory comments.

Explain yourself and have an open mind.

While I believe that mediation should be the first choice for a couple who is separating, I also acknowledge that it will not make the process painless or a “walk in the park.” You and your spouse can make things a bit easier on yourselves by not wasting the time spent with the mediator.