{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. 

{4:00 minutes to read} The mutual goal to reduce the financial costs of a separation is a primary motivation for most of my clients, second only to the desire to reach an agreement with as little rancor as possible. Regarding the financial costs, however, there are steps that clients can take to ensure that mediation fees remain reasonable by limiting the number of sessions that are needed.

Complete Your Work Between Meetings

At the end of my summary of the meeting, I include a “to do” list for the clients and myself.
While much of the work in between meetings centers on the financial aspects of divorce — doing budgets, gathering documents, etc. — there are other tasks that can come up. These are things that either can’t be done at a meeting, or would not be the best use of time, such as: 

• Researching school districts in different communities if you need to move to a more affordable home;
• Researching the costs of new housing;
• Considering employment opportunities if you need to enter a new career.

Taking care of this outside of the meetings will help the mediation progress more quickly.

Think About the Issues

If the mediator suggests you consult with another professional during the course of the mediation — an attorney, a financial or mental health professional — there is usually a good reason for that. Either the issue is beyond the scope of what the mediator should be doing or has the expertise to do, or the time being spent in the mediation is not as productive as it could be. In either case, working with someone else may make the mediation smoother and ultimately less costly.

Don’t Try to Mediate by Email

In Part II, I’ll address additional ways that you might be able to reduce the costs of mediation. 

{4:30 minutes to read}  Over the years I’ve been mediating, I’ve been asked by potential clients if the following concerns would mean that they could not mediate their separation. Here are some of their questions and my responses:

We disagree on everything. 

I am very angry at my spouse. 

Anger and other strong emotions are usually present in a mediation. A trained and experienced mediator should be able to address those emotions so they do not derail the process. 

If the anger is unabated, however, or if there is a stream of unrelenting sarcasm, the likelihood of reaching a successful agreement can be diminished. In those circumstances, either working with a divorce coach or possibly co-mediating with a mental health professional could be helpful. 

My spouse won’t tell me about our assets. 

If your spouse refuses to fully disclose income and assets in mediation, there cannot be a mediation, and you will need to proceed in a different manner, so that you are confident that full disclosure is made. 

I don’t know anything about finances 

It’s not unusual that one person took control of the family’s finances in the marriage, leaving the other unaware of things like the account used to pay bills or when the car insurance premium is due. In mediation and through disclosure, you will learn about your assets, and if you need assistance outside of the mediation to prepare and understand a budget or other financial issues, you can individually work with a financial professional. 

We have complicated assets. 

Some people think that mediation is only useful to resolve matters pertaining to the children, when in fact, all aspects of distribution of assets, allocation of debt and support are to be discussed and resolved. If one of you owns a business or if it’s too difficult to determine income for one or both of you, or if you have a difficult budgeting scenario, working with a financial professional to act as a neutral is always a possibility. 

I don’t feel comfortable with speaking up and making decisions. 

Self-determination is a main tenet of mediation, and you will need to both advocate for yourself and make decisions on your own. While the mediator can help to address an imbalance of power or lack of business experience between the clients, the mediator cannot advocate for a party and will not make the final decisions for you.

But there are some steps you can take so you can mediate. You can have either an attorney or a financial person in the room with you, as long as your spouse agrees. Or, if you feel comfortable enough in a meeting alone, you can meet with the professional outside the mediation to receive guidance as to what to propose and how to respond in the meetings. 

There is domestic violence in our marriage. 

You will need to disclose this to the mediator, and if the mediator believes that he or she has the training and ability to proceed, there will need to be sufficient protocols in place to insure safety. Care must also be taken to assure that self-determination of both parties is possible under the circumstances. 

Concerns such as these may not mean that you cannot mediate as long as you work with the right professionals and are assured that you have all of the information you need to make good decisions.

{3:42 minutes to read} It’s clear that until an agreement is signed, the tentative agreements you make along the way are not legally enforceable. But, those tentative agreements are vital as you progress from meeting-to-meeting in order to reach an overall settlement.

While you are free to change your mind up until the time you sign your name on the agreement, there can be consequences to making changes to something you previously agreed to:

Other Terms Can Change As Well

Accusations of Delay/Non-Commitment to the Process 

While you may be sincere in wanting to make a change, the other person may just think that you are delaying and trying to drag out the process.

Lack of Trust

To you, it’s just looking at things differently and simply changing your mind. To the other person, it can appear as if you are not keeping your word. Recognize that you may need to re-establish trust and your commitment to finalizing the mediation.

All of the potential consequences of changing your mind aside, if this is something significant to which you feel you can no longer agree, you need to raise the issue. It’s better to deal with the fallout now than to sign an agreement containing terms you do not believe are in your best interest and which you will resent later.

So, If you’ve decided that you want to change a major term that you’ve previously agreed upon:

1. Be aware that other terms you didn’t expect to change may be altered, and don’t dismiss them out of hand or become resentful;
2. Explain in a way that the other person understands why this is so important to you and why you didn’t recognize it initially; and
3. Demonstrate that you are open to letting the mediation process continue.

And before you agree to something that you’re not sure about, remember that rather than yes or no, it’s perfectly okay to say:

• Maybe;
• I need to think about that; or even
• Let me wait and see how other terms go.

Then, outside of the meeting, you can give some real thought to the issue in question so that when you do commit, you’re sure about it. 

{3:42 minutes to read} Interim agreements are agreements that determine certain terms before the parties sign a comprehensive separation agreement. Some of the topics that may be covered by these kinds of agreements could be: 

• How to handle the sale of a house;
• Support and parenting plans;
• A provision that marital assets stop accumulating as of a certain date; and
• Arranging for the disposition or purchase of a particular asset.

Typically, in my practice, clients informally agree upon matters such as these before they even begin the mediation. Many have already been living apart and determined how they want to share access with the children and pay expenses, or feel comfortable with a verbal agreement made during mediation. Still others feel that in the time it would take to consider the terms of an interim agreement, they could reach an overall settlement. All of these types of clients feel comfortable taking certain steps towards separation without a written agreement.

For those who don’t feel comfortable with informal agreements, though, interim agreements can be valuable, keeping both parties feeling secure and willing to continue in mediation.

There are two kinds of interim agreements that parties in a divorce mediation can make:

1. A temporary interim agreement that is expected to be amended by further discussions; or
2. A permanent interim agreement whose terms will ultimately become part of the overall separation agreement.

A temporary agreement would be helpful if the parties feel that they’re not quite ready to determine something such as final support terms, but one party is concerned about the other leaving the joint home without having something in writing about support payments. This temporary agreement would be binding until the parties ultimately agree to permanent support in a separation agreement, or if mediation is not successful, until an order of the court is made.

A permanent agreement could be used if the parties, for example, have mediated parenting and child support terms completely but are not yet ready to finalize the separation agreement on all terms. For whatever reason, the parties want to be bound by the terms they have agreed upon, and so sign a parenting and child support agreement. This parenting and child support plan will then be part of their Separation Agreement without further revision.

Whether temporary or permanent, entering into an interim agreement, while helpful, has serious consequences. The parties must be clear that they fully accept and are willing to abide by these terms since they will be binding unless the parties agree to change them. They must acknowledge that there will be additional fees and time incurred in the drafting of the interim agreement, and should have the agreements reviewed by counsel.

{3:48 minutes to read} In New York, we refer to “joint legal custody” as joint decision making in which neither parent has a superior right to make decisions for the children. It sounds reasonable, and most parents agree to joint decision making without much thought.

But then I ask “What do you think will happen if you can’t agree upon a major decision?”

A large percentage of my clients believe that they will not have any substantial conflicts in making joint parenting decisions, much as they had been doing. If clients tell me that there is a particular issue about which they believe they will be in conflict, that can be addressed in mediation and hopefully resolved.

For others, there is a concern that there will be conflict, if not on all but on some issues. If that is the case, language that simply provides “The parties agree that they shall have equal decision making and shall consult with each other in regard to all major decisions affecting the children” is not particularly helpful.

For other clients, there are no particular issues they imagine will be difficult, but they do have a history of different parenting philosophies and choices. For those clients, we discuss a process that they believe they can follow to help them make joint decisions.

First, we address what would be the major decisions upon which they will need to agree. Typically, they are all decisions affecting a child's growth and development, including:

• Choice of school;

• Course of study;

• Extent of travel away from home;

• Extracurricular activities;

• Choice of camp;

• Major medical treatment;

• Lessons;

• Psychotherapy; psychoanalysis or like treatment;

• Part or full-time employment;

• Purchase or operation of a motor vehicle;

• Especially hazardous sports or activities; and

• Decisions relating to actual or potential litigation involving a child directly or as beneficiary.

Each family has different concerns, and some other topics that are added to joint decisions specifically are camping, age at which a child may be left alone, and social media use.

So, what can a couple do if they have conflict in joint decision making after they sign the agreement?

First, of course, they engage in meaningful discussion about the issue. If that does not resolve the conflict, a structure that many couples choose as being the most likely to resolve the issue with the least amount of discord is this:

Typically, the painful and challenging emotions that exist during the mediation of the separation will have eased somewhat over time. Most parents are then able to resolve joint decisions even if they have conflict. But if they can’t, having a process to follow is helpful. 

{1:00 minute to read} My colleagues, Dr. Jeff Zimmerman and Dr. Lauren Behrman, posted an article on how your children may pick up on the negative communication between you and your spouse/ex-spouse, even if you do not.

The article reminds us that all communication in front of children, both verbal and nonverbal, has an impact on them. I’m also heartened that Jeff and Lauren propose practicing mindfulness to help parents transform unhealthy practices into healthy ones.

I believe the insights in this article may be of benefit to all parents, whether divorced or not. To read it, simply click on the link below:

Post-Divorce Parenting Communication:
What you say, and how you say it, really matters to your children.

Thanks, Jeff and Lauren, for this reminder and remedy.