{3:48 minutes to read} While the New York Child Support Standards Act (CSSA) is not perfect, it does provide a sensible framework for addressing the indirect expenses that a parent experiences. These indirect expenses are the most difficult to calculate and the most difficult for the child support payor to understand.

“I’m willing to pay 100% of my children's expenses for clothing, activities, medical insurance and expenses — why should I have to pay child support?”

That may sound logical, but it ignores the many tangible and not-so-tangible expenses that a custodial parent incurs.

So, to address those difficult-to-quantify expenses, the CSSA uses a formula that multiplies parents’ incomes by percentages based upon the number of children.

What I understand from my upstate colleagues is that the CSSA works fairly well. But in the metropolitan New York area where the housing costs are radically different from other parts of the state, it can be challenging for someone to pay support by the CSSA and maintain a home where the children can visit comfortably. It can be equally challenging for the recipient of child support to make ends meet on support by the CSSA.

In those situations, I’ve seen couples take two approaches:

{3:06 minutes to read} The concept of hope has been on my mind since a good friend recently told me that she will be awarded the Spirit of Hope award from her cancer support group. Throughout the many fears, disappointment, and pain that living with cancer inflicts, she has remained remarkably hopeful these past several years. She is the embodiment of hope to me, and she is truly deserving of this honor.

It’s human to feel fear when confronted with the risks and challenges of life, whether they are real or perceived. It’s also human to feel despair when you consider the horrors that people do to each other on a far too often basis and the disregard with which many people act. Hope doesn’t mean that you ignore your concerns or pretend that bad things don’t happen.

To the contrary, the advice Archbishop Desmond Tutu gives, in speaking about the power of hope in The Book of Joy, is to distinguish hope from optimism. He teaches that optimism is a superficial and fleeting emotion that can dissipate easily when something doesn’t happen as you expect. He sees the concept of optimism as dependent more on feelings than on reality.

Hope, on the other hand, is based upon the “firm grounding of conviction,” and the knowledge that in time, the fears, concerns, and bad times will pass.

So, to have hope, you do need to have faith—faith in human nature, in relationships with others, and in the community of all human beings. It is something that you feel deep inside; a firm belief that no situation is utterly without hope.

We all experience challenges in varying degrees, but to face any challenge with despair turns us inward at a time when we should be seeking others for support. It can be a scary thing to connect to others when you feel so vulnerable and helpless. It can be much easier to respond negatively and remain enmeshed in your own cocoon. But, Archbishop Tutu suggests that remaining inward will only magnify the feelings of despair and that it is hope that will be the antidote.

To me, hope is why we keep trying, why we fall in love, why we have children, why we maintain friendships. We couldn’t achieve any of that without faith in others and a belief that things will work out ultimately.

May we all choose hope for the new year. 

{4:06 minutes to read}

“We don’t need to mediate–we agreed to everything already and just want you to write it up.”

“We don’t have any assets, so we don’t have anything to talk about.”

“We don’t need a separation agreement, we just want to get divorced.”

Undoubtedly, as all mediators do, I’ve heard these statements, or variations on them, more often than I can count. It’s understandable, but it’s not that simple.

Here is why it’s more complicated than you may think and why coming to an initial consultation for mediation can be so helpful, even if you think that you don’t need mediation.

We’ve agreed to everything

• Have you considered holidays, vacations, school recess periods, and how the schedule may change as the children get older?
• Have you done budgets to see if the formula for child support is workable for you?
• Have you discussed what happens if one of you loses your job or makes more or less money than you do now?
• What about insurance if one of you dies?

We don't have any assets

• Does that mean you don’t have any marital assets? Or does it mean that you kept assets in your individual names and you are each keeping them?
• Did either of you or your employers make any contributions to a retirement account?
• How about debt?

Can’t you just do divorce papers?

Uncontested divorce papers are best for couples who have worked everything out in a Separation Agreement or who don’t have much in the way of assets and don’t have children. If not, it’s more complicated to complete a set of uncontested divorces papers. And you lose the protections and the detail that you can achieve in a Separation Agreement.

So, while it will make the process much easier if you’ve agreed upon everything or have limited assets, that doesn’t necessarily obviate the need for mediation. Attending a consultation won’t obligate you to go any further, and you can get some valuable information to help you make a good process choice.

{3:42 minutes to read} I was talking to a colleague recently about a mediation. She was surprised that it took as many meetings as it did to reach a resolution and that the couple almost terminated the process. It was a relatively short-term marriage of a few years, and they had no children, so she had not expected that it would be difficult.

I agree that expectations of difficulty are often misleading. At an initial consultation, I can only judge a mediation’s difficulty by the dynamics between the couple and the few things that they say before I can remind them that it’s only a process discussion. But appearances can be deceiving when unexpressed fear, anxiety, and hurt are lurking in the background. And that can arise no matter how brief the marriage or how uncomplicated the financial situation is.

In a short marriage, the assumption might be that, since they were not together that long, it shouldn’t be a difficult mediation, but that is false in at least a couple of ways. First, the short length of the marriage doesn’t mean that they are not experiencing a loss of someone loved, counted on and relied upon for emotional and financial support. It also ignores the fact that they likely had a relationship before they married. The act of marriage doesn’t make all the other time spent together meaningless, and the feelings from your pre-marital relationship are bound to have an effect on your mediation.

Moreover, no matter the length of the marriage, the fact that the parties have no minor children means that there are fewer topics to discuss, but it doesn’t necessarily mean that the mediation process is easier. The loss still exists, along with the fear, anger, and anxiety that typically accompany that loss.

Often, the couples themselves fall into that trap, telling me that theirs will be an easy mediation. But no one can necessarily anticipate the emotions that are likely to arise and make a topic that seems to be straightforward on the surface, devolve into a difficult conversation:

When discussing support, the person who makes less money may suddenly come to terms with the fear that his or her lifestyle may change. 

When we discuss what will happen to the marital home, the fear of living without the other person suddenly becomes a reality. 

How they have been paying their household expenses can bring up a surprisingly angry response, because underneath the anger is the hurt that a spouse refused to share a bank account and combine incomes. 

No matter the length of the marriage, an affair can bring up anger masking the hurt, guilt, and shame just below the surface. 

If these emotions arise in mediation, the mediator can help you address them in a constructive and understanding manner so that they don’t prolong the conflict and inhibit you from working toward a resolution. 

{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.