{3:42 minutes to read} It’s perfectly normal for most married couples to live their lives without knowledge of the intricacies of separate and marital property in New York matrimonial law. Unfortunately, though, that lack of knowledge can lead to common and innocent “mistakes” and have unintended consequences under the law.

Our Typical Couples

A couple maintains only joint accounts and holds all property with the other named on all assets. This has been what they have done since they were first married and have never given it a second thought. So, when one received a large gift from a parent, they just deposited it into a joint account and made withdrawals from the account, as usual. 

They each may have had an account in their individual names before they got married, and have kept those accounts, depositing some of their paychecks into them and using the accounts to pay their expenses.

One of them owned a home before the marriage. They decided after the marriage that it made sense to put it into both names so that if one died, the other could inherit the home.

Commingling

The law defines commingling as when you have something that is clearly separate property, such as an account that you had before you were married, into which you then deposited marital money (such as your salary). 

Transmutation 

Transmutation of a separate asset into a marital asset under the law occurs when you add your spouse’s name to an asset that would be considered separate property. The transmutation for our typical couple could be claimed when the real property was transferred to joint names. Similarly, the gift from the parent, while separate property when given, could lead to a claim that it became marital property when deposited into the joint account.

If commingling or transmutation occurs, it doesn’t necessarily mean that you have lost everything. You may be entitled to some kind of credit or, under certain circumstances, may even be able to retain the separate property nature of the asset.

That determination, however, can certainly involve a significant amount of attorney's fees to resolve the issue if you are in a contested situation with your spouse. On the other hand, if you are in a mediation, you will not only understand what the law provides and the questions that would be inherent in determining if a commingling or transmutation occurred but more importantly: 

•How the other person feels about it;

•Why the other person commingled or transmuted the asset; and/or

•What the other person intends to do with the property/asset if it can be retained as their separate property.

And you might just come to a conclusion on your own that you both can feel good about. That resolution will take into consideration all of the facets of the law—as well as the feelings, reasoning, and intentions of both of you—and eliminate the hurt, time and cost of an adversarial process.

{4:12 minutes to read} As I described in Part I of this post, it’s not unusual to feel completely overwhelmed upon hearing that your spouse wants a divorce. You think the last thing you are capable of doing is making good decisions about your children and your finances. But then you keep getting pushed by your spouse to start the divorce ASAP.

You can tell your spouse that you need some time to process everything and get the support that you may need to move forward. Then, be reasonable in providing a time frame for when you will start, and stick to it.

At that point, I believe that suggesting mediation can help, even if you feel blind-sided and mired in negative emotions. Here are the reasons why:

It is a speedier process.

Prolonging the process of separation probably will not make you feel better and certainly won’t help you to move forward. Provided you both do the required work to draft budgets, gather all financial information and give consideration to your interests and proposals for settlement, you are likely to reach resolution sooner in mediation than negotiating through attorneys, and certainly sooner than if you went to court.

You work with your spouse in a collaborative fashion.

Even though you are angry, fearful about what will happen to you and your children, and probably still blame your spouse for wanting to end the marriage, he or she is not the enemy. This person is still someone you deeply cared for and who likely wants the best for you even though they no longer want to live with you. You have worked together in the past, and while this obviously will be a more painful collaboration, you can surely do it again to achieve a settlement that works for both of you.

You look to the future in terms of making proposals rather than the past to assess blame.

Being mired in the “blame game” is not going to help achieve a settlement. It will only prolong the process and make it unnecessarily hurtful. Instead, focus on how to change something about the past that makes you angry, and propose something that can be done differently in the future that is more in line with your interests.

You can work with other professionals in the process.

If you feel incapable of making good decisions or are afraid to work through the difficult emotions you feel, in the mediation process, you can work with other professionals:

• You can meet with an attorney before starting mediation, in between meetings, and/or to review the separation agreement.
• If you need help understanding financial details, you can work with a financial professional, either as an advocate or a neutral party.
• You can work with a mental health professional if you need someone to act as a coach to get you through a meeting with your spouse.
• You can work with a child specialist to help address concerns about a parenting plan. 

With the consent of your spouse, these professionals can also attend the mediation session(s).

It will still be difficult, but I believe that mediation is more likely to provide a process that helps you move forward more quickly and an outcome that is in the best interests of both of you.

{3:24 minutes to read} So, you just learned that your spouse had an affair, or you receive an unexpected request for a divorce. How do you react when someone you thought you knew, and your life with that person, is turned on its head?

If you’re a really remarkable person, your first reaction would be to exhibit strength and grace in the face of this event that upends your world. If you’re like most of us, though, the first reaction would be a combination of sorrow, fear, anger, self-pity, self-doubt and “why me,” all of which can occur in rapid succession. In turn, you can feel completely overwhelmed and overcome with emotion.

Then what?

Moving Forward

At some point, most people come to accept their changed circumstances. This could be a function of time, but more often, I think it’s from recognizing that you might need help and getting that help. It could be from a mental health professional, a support group, or from understanding family or friends who are there for you.

It takes courage to be willing to accept what appears to be a negative change to all you hold dear. You may need more time than someone else to mourn a loss. It’s healthy to go at your own pace. Moving too quickly to acceptance can be as harmful as not moving at all.

Staying Stuck

Sometimes, though, persons who have been dealt a bad hand just can’t let go. They go through the initial reaction of hate, anger, etc. but then they keep reliving it over and over, holding onto the negative emotions as tightly as they can. They remain angry at the world for the rest of their lives and seek revenge. Instead of getting the help they need, they either keep to themselves or alienate friends and family with their perpetual laments.

When I work with clients who are divorcing, it’s not uncommon, at least in the beginning, for each to fall into one of these two categories: moving forward or staying stuck. It is even more likely if one had thought about separating long before the other even knew it was a possibility.

To me, acceptance and moving forward has much to do with the process you employ to separate. In an adversarial process you tend to become enmeshed in a course of action in which you see the other person as the enemy. That only exacerbates all of the negative emotions and keeps you stuck in that place for a prolonged period of time.

In Part II, I’ll explain how I believe that mediation can help you to move forward in a better way.

{3:18 minutes to read} In my past life advocating for clients in an adversarial process, getting to the point of splitting the difference was the last settlement proposal, and timing was everything. If your first offer is close to what you really want, there will be little room left to split the difference if your adversary low-balls their demand. For example, if you are looking for $5000 and ask for $5000 in support and your spouse offers $2000, you are going to lose in the “split the difference” scenario. So this practice encourages unrealistic offers and counteroffers, resulting in annoyance and insults (“How dare you!”) and prolonged negotiation.

More importantly and disappointingly, splitting the difference probably doesn’t meet the interests of either client, since it is merely a mathematical formula based upon meaningless offers to begin with. But it is a way that parties can settle, and to paraphrase something that’s repeated time and again in litigation: “a good settlement is when both parties leave unhappy.” Or, in other words, both parties lose.

So, is having two unhappy clients, neither of whose interests were met, a good outcome? I think mediation does much better.

In an interest-based discussion of the clients’ needs, there is the opportunity to avoid both the win/lose and lose/lose scenarios. We ask clients why something is important to them and why they want what they want, in an effort to try to identify their underlying interest. This leads not only to mutual understanding but also opens up many possibilities as to how their interests can be met.

Is this a long and sometimes unpleasant process? Yes, and I truly understand that even in mediation clients reach a point where they just want it over. The temptation to just divide the difference can be overwhelming, especially when the difference is not so great.

But before clients go that route, I think it makes sense to at least go to the next step and talk about what that will mean to each of them:

• If it’s a support issue, I revise the budgets to see how the split-the-difference figure actually works for both of them. If it doesn’t, then we need to have future discussions.
• If it’s a conflict over something, such as the date of the month when support will be paid, I ask why the particular date each wants is important. We then discuss their respective cash flows and any savings they have to help them bridge the time needed to pay expenses.
  
  

Results of this thoughtful process usually outweigh splitting the difference, to the benefit of both clients.

{4:18 minutes to read} I’ve heard many complaints regarding divorce mediation:

• “It might be okay for simple matters but not for anything complicated.”
• “It’s too touchy-feely.”
• “You give up all of your rights when you mediate.”

These types of complaints are easily dismissed as biased and uninformed; however, there are some complaints I’ve heard which I agree should be taken seriously.

Mediator Lacking Relevant Knowledge

Mediator Lacking Mediation Skills

To Be a Qualified Divorce Mediator

An unqualified mediator is harmful not just to the clients who work with him or her but also to the profession. In addition, unqualified mediators can legitimize complaints made by some who want to minimize the practice.

Fortunately, there are more qualified than un-qualified mediators who have helped thousands of couples through this safe and less expensive means of working out the issues of their divorce.

{4:00 minutes to read} I recently heard an interview of Connie Shultz, the spouse of Sen. Sherrod Brown of Ohio. She shared that since 2007, the motto of her life has been "no whining on the yacht." It began after her husband had just been elected Senator. She was publishing her second book, and life was good.

At one point, she complained to her editor about the deletion of a litany of stories detailing the wrongs she felt occurred in the senate race. Her editor insisted the sections remain out and said “no whining on the yacht.” She reminded Connie how much in her life was going well, and that she really didn’t need to focus on every slight when she was in such a good place.

I agree wholeheartedly. People don’t necessarily want to hear your complaints, especially about minutia, when others have far less and real world concerns. “Whining on the yacht” can make a person look petty and uncaring.

I thought of this as I was watching the flooding in Texas from Hurricane Harvey and heard an interview of a woman who had been rescued as her house and neighborhood became flooded. She was holding her dog, and she had taken no other belongings or necessities.

She explained that she had been in denial, thinking it would never happen to her as she watched the television coverage and cried for all of the people who had to be evacuated.

At one point, a firefighter came to the neighborhood and said that he would be back for her, but he never came. She wasn’t angry and understood that he was helping others who needed help more than she.

When she saw the volunteer boat come, she only went when her neighbor said she needed to go, and then just took her dog. She didn’t want to be a bother to anyone and wanted to be sure they rescued others before her.

From the boat, she went onto a bus, and when she got off the bus, she realized she had nothing and no one with whom she could stay. Her family was too far away and she didn’t know what to do.

Fortunately, a total stranger came up and asked if she needed a place to stay, because he and his wife were opening their home to people who were stranded. She was shocked that someone would do that for perfect strangers. The man replied that they had been helped in the past and couldn’t imagine not helping others.

Here is a woman, amongst many, who has numerous reasons to whine, complain and lament, and yet her chief concerns were for her dog and others that she perceived to be in more dire straits than she was. It’s truly a rare and remarkable person who can be that magnanimous and uncomplaining in the face of such extreme adversity.

So let’s remember this woman, and the thousands of people who have been and will continue to be suffering the effects of Hurricane Harvey and Hurricane Irma for months and years to come. No whining on the yacht can be a motto for us all.

{3:54 minutes to read} After working with a couple who had particularly good communication skills and consequently had achieved an agreement with relative ease, I gave some thought as to how this couple was different from some of my other clients.

And then I remembered that, following the first 100 days of the new administration, my friend and fellow mediator, Ada Hasloecher, posted five lessons for parties in mediation. I decided I couldn’t do it any better myself, so with her permission, I am reprinting her post. Thank you, Ada!

What Are Five Lessons From the First 100 Days?

{4:24 minutes to read} Nesting is a shared parenting concept that allows the children to stay in the marital home while the parents go back and forth. The idea is that the children will be able to remain in one familiar place, have no concerns about where they are on what day or what they need to take with them. Typically, parents who choose this will be sharing time in the home with the children on an equal basis.

To see if this might work for you, consider the following:

Long Term or Short Term?

My experience has been working with clients who have agreed to do this on a short-term basis for the following reasons:

• Wanting to separate now, but unsure where each wants to live.
• Waiting to place the marital home on the market or waiting for a sale.
• Giving it a year for the children to adjust to not being with either parent full time.

The length of time that you will be nesting may be determined by your tolerance level for the other factors listed below that I suggest you consider. If it’s working for your family, though, you certainly may choose to continue to nest for as long as you wish.

The Cost

In order to nest, you will need to be able to afford to share the costs of the home in which the children reside and, ideally, a separate apartment for each of you. Sharing the home and only one additional apartment could be done, but you need to consider how you each feel about not having any space to call your own.

The Lack of Privacy

This is somewhat alleviated when you each have your own apartment, but you will be sharing the marital home and presumably, the same bedroom you shared when you lived together. You might feel differently about leaving personal items around for the other to see and/or use than you did when you were married.

Significant Others

The longer the nesting, the more this will be an issue. Neither of you may be ready to date initially and will probably agree not to introduce the children to anyone soon after your divorce. But as time passes, you will likely be dating. Can you bring someone to the shared home? What if you are sharing an apartment as well?

Working Together

If you were always annoyed when your spouse left clothes on the bedroom floor or dishes in the sink, keep in mind that these issues will annoy you even more when you’re no longer married. You need to consider thoroughly anything that bothers you and agree upon house rules that you both can live with and actually adhere to.

Reassessment

While I always talk to clients about building into their agreement a review, it is vitally important to have a process to discuss a change if either of you feels that nesting is not working for you or the children. If it’s not working for someone, it’s not working, and that needs to be addressed as soon as possible. You may also consider building in consultations with a child specialist so the children’s views may be heard.

All of these items are important and need to be considered before you make this choice. However, if the benefits of nesting are profound for the children, you may be willing to put up with some inconveniences, or your co-parent may be willing to make some changes, so that you can continue.

{3:54 minutes to read} I just returned from the annual gathering of the NYS Conference on Divorce Mediation. This is my 12th conference, and I was as excited to go to this one as I was to my first.

While the focus is on education with plenaries and workshops on various aspects of family law and mediation theory, there is undeniably another element that plays a very big part. Whether we do it full time or not, are experienced mediators or just starting out, we all feel that we are doing something that is fulfilling and gives us satisfaction. And we all want to share our knowledge and experiences with our colleagues and support each other in a way that I have never found in other professional organizations.

I think a large part of this has to do with the generous spirit of those who enter this profession, but some credit also has to go to the high level of satisfaction we feel from what we do. Without any empirical evidence, I’m happy to relate my personal observations.

I used to represent clients in contested family law situations, real estate and estate matters. While I enjoyed nearly all of the interactions with clients, there was much that did not lead to a sense of career fulfillment:

• There were deadlines and time constraints that invariably arose at the worst times in my personal life.
• Vacations were always stressful before leaving, stressful when checking into the office to see if there were any looming disasters, and stressful in making up for lost time when returning.
• Even a real estate transaction could become adversarial with brokers or attorneys making arbitrary demands, just because they could.
• And of course, litigation would bring out the worst in not just the client, but in me as well.

Since I have limited my practice to mediation and representing clients in mediation several years ago, I certainly wouldn’t say that all stress has disappeared or that I always feel that I am leading a charmed life with all clients being undemanding and no matters causing me anxiety. But even in challenging mediations, I am still glad to be doing what I am doing and have the benefit of support from my colleagues.

More importantly though, I am not enmeshed in a situation in which there is an adversary. Even while representing a client in a mediation, that client has chosen to work collaboratively with the other party, and that makes all the difference.

I feel fortunate to be able to do something that I enjoy and at the same time provides a service that benefits so many people. And I appreciate the opportunity to speak with and help new mediators entering the profession.

As more professionals recognize the benefits of being a mediator, I have no doubt that more and more couples will choose to meditate and experience the benefits of handling their conflict through this process.

{3:06 minutes to read} In the previous part of this series, we looked at parental considerations in relation to a child’s college education. In this final post, we will discuss the child’s role with regard to their college education and any credits against child support.

Should there be a contribution from the child?

Do you believe that the child should be responsible to pay for part of college, through loans or otherwise?

This has both philosophical (should the child contribute for her own sake) and practical (can you afford to fully fund college) considerations. I have seen contributions be applied:

• At a rate of 1/3 for each parent and the child;
• Where one parent or child takes on a larger share;
• With variations on the percentages.

The child’s contributions, unless from savings, would be from loans, so the parents should address who will co-sign if required. Also, a scholarship, which is earned through the skill of the child could be part of that child’s contribution.

What requirements are placed on the child in terms of attending college?

What if your child wants to be on “the 5-year plan” or doesn’t do well in school?

Parents often will limit their contributions to four years at an accredited college, university or other institution of higher learning. They may further stipulate that the child attends on a full-time basis and that the child maintains a passing average.

Does a parent paying child support receive a reduction for a child residing at college?

What expenses are “double paid” by someone paying child support?

Whether you just think about these terms on your own or speak to your spouse or partner before addressing them in mediation, it would be helpful to know how you feel about these issues before mediating them.