[Time to Read: 3.9 mins]

While it’s hard for most people going through a divorce to imagine dating again, it’s more likely than not that you will, and that you will be introducing this new person in your life to your children. Having been that new person who was introduced to two stepchildren, I’m happy to share what worked for us.

First and foremost:

Do Not introduce the person to your children unless you know it is a serious relationship, no matter how long you have been dating the person. You have to strongly feel that this person will be there for the long haul.

Second:

Take the child’s age and temperament into consideration and make the introduction in the way that is comfortable for the child. For example, with a younger child, take more care to be sure it is done in a relaxed and non-threatening way. Invite other family members with whom the child is comfortable and/or do it in a fun place, like an amusement park or zoo.

Third:

Be respectful of the other parent’s feelings and don’t surprise him or her. Be sure that you give a heads up to your ex before any introduction is made. It’s not only the right thing to do, but you don’t need to add further complications to what is an already delicate situation.

The worst thing you can do is let your child be the bearer of the news that there is someone new in your life.

Finally:

Give it time. Be aware of and honor your child’s feelings. This is all strange and new to them, and it’s not unusual for them to be fearful about sharing you with another person. Be sure to reassure them that they remain your priority, spend time alone with them and let them know that you will be there for them just as you always have been.

The first introduction to someone whom you care about can significantly impact how your children feel about that person in the future.

• If it’s done well, it can lead to a relationship where they are comfortable and feel that there is another person who is there for them.
• If the first meeting is not well thought out or premature, they may never rebound and may always feel somewhat threatened and resentful that someone is taking time with you away from them.

I’m very glad to say that I fall into the “done well” category. I had good introductions to my two stepsons, one of whom was in his second year of college, and the other, 8 years old. We followed what I am suggesting above, and I’m happy to say that I have had enriching and fulfilling relationships with them both over the last fifteen years. And as an added bonus, I have the good fortune to be a step-grandmother of two.

Have you found love the second time around? How are you planning to make the introduction to your children? Please feel free to share your thoughts in the box below.

[Time to Read: 4.1 mins]

At the initial consultation, clients often express concern that within the process of mediation they may not “get a good deal.” They wonder if they will be able to mediate because they do not have the same financial expertise as the other party, or perhaps the other party is more educated or has more business savvy. Whether these feelings are real or perceived, they can be a barrier to the clients’ ability to feel comfortable with the process and secure in the knowledge that the decisions they make are sound.

I tell clients that within mediation, they can obtain all of the help and guidance they need to make good decisions for themselves and their family. They may consult:

An attorney:

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

A Certified Divorce Financial Analyst (CDFA)

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

I saw this in action as a consulting attorney to a client in mediation. She had attended a few sessions, and they had reached tentative agreements on most major points. However, the client was unsure and uncomfortable with the terms and her ability to make ends meet. Yet, she did not voice her concerns in the mediation because her husband had a much stronger personality.

I advised her not only as to the law, but also how she could raise her concerns in the mediation and offer alternatives. I also referred her to a CDFA, both so that she could feel comfortable asking questions that she was afraid to raise in the mediation and also so that the CDFA could assemble written backup to show how untenable the terms her husband proposed would ultimately be for her.

Six months later she returned for a consultation with a very different plan and a very different voice. She was unrecognizable as the woman with whom I first consulted. She even came armed with a table showing how her future costs for medical insurance would cripple her financially; a chart that she devised herself with no help from the CDFA.

She told me that the mediator suggested I attend the next session, and I was glad to hear her say, that she didn’t want me to attend. She wanted to do this on her own and felt that she was capable of advocating for herself at this point. She did in fact do so, and the parties did reach a mutual agreement in the best interests of both parties and their children.

Had she gone to an attorney who didn’t recognize how a person can achieve knowledge and empowerment in the mediation process, that attorney likely would have told her that she should not be in mediation without offering alternatives to keep her in mediation while ensuring her interests were protected. She may have ended up with a similar settlement, but she never would have gained the strength and knowledge that came with being her own advocate.

In my last blog, I wrote about how a mediation can begin if one spouse isn’t quite as prepared to divorce as the other party. Now, I would like to address what happens when those feelings do not diminish as the mediation progresses.

The practical effect in a mediation when one party is reluctant to divorce can be that the reluctant party continually expresses blame and fault against the other party. They may say things like “I didn’t want this, so why should I have to agree to...” It can also have a much more tangible and profoundly negative effect on the process, such as:

• Trying to delay the divorce by cancelling sessions
• Not coming prepared to sessions
• Constantly changing previously agreed upon terms.

When clients express anger and blame, it is most often because they need to say it and even more importantly, need to have it acknowledged. Over time, that party can feel that he/she has been heard and can come to accept that it is now time to move on.

If not, and such comments are preventing the parties from reaching an agreement, then the mediator can:

• Try to address it with the party in a caucus.
• Try to address it with both parties present.
• Suggest that one or both parties meet with a divorce coach.

It is much more problematic when the reluctant party intentionally or unintentionally derails the mediation. I say unintentionally because often the behavior is passive and may not even be recognized by the reluctant party. The mediator can then bring it to their attention either in a caucus or with both parties present, depending on which would be better received.

If that doesn’t work or if the non-cooperative behavior escalates, mediation may not be an appropriate resolution for that couple.

I had a mediation which continued for several years. It was very difficult in the beginning because the husband felt very strongly about remaining married even though they had been living separately before the mediation began. The parties returned sporadically, sometimes having a year pass in between meetings. Ultimately, the husband did come to accept the end of the marriage.

Because this mediation was prior to no fault divorce having been adopted in New York State, the wife  had no option to litigate because she had no grounds for divorce. She acknowledged that she had no choice but to let the husband come to terms with the divorce in his own time.

The agreement they reached worked for them and their children, and even though it took longer than the wife wanted, she recognized that having the husband reach this point on his own terms was a better outcome than forcing him to adapt to her timetable.

Are you and your spouse on the same timetable for divorce?

Social Media Comments

I enjoyed your message Clare. A point of acceptance to proceed in good faith in mediation is the possibility of Decree of Legal Separation instead of Decree of Dissolution of Marriage. It can be changed by either party in Colorado after the court has issued the Decree. There is no defense but the Legal Separation status remains until either party motions the court for divorce.

Catherine Schulteis

It’s rare in my practice for both parties to be in the same frame of mind about getting a divorce. Most often, one person is more prepared for the process and the separation, while the other party may not even have come to terms with the concept that the marriage will come to an end.

When I used to litigate, you needed grounds for divorce. If only one person wanted the divorce but had no grounds, then he or she would either have to stay married or be prepared to make a very generous settlement offer. Now, if a couple settles all parenting and financial matters between them, they may divorce based upon the grounds of “irretrievable breakdown of the relationship.”

In mediation, you can’t proceed unless both parties agree to the process. However, I have seen clients who clearly state from the beginning that they don’t want the divorce, but they agree to mediate because they see the inevitability of it and prefer mediation to litigation.

What if my spouse refuses to accept the inevitable?

• If you haven’t already done so, you can try marriage counseling as long as you are honest in your motives. Sometimes marriage counseling can help the reluctant party recognize that the marriage is over.
• If that doesn’t help, you can see if your spouse is willing to have a consultation with a mediator, even if he or she isn’t fully committed to the process as yet. Sometimes, just hearing that you are serious about wanting to end the marriage and are taking steps in that regard, helps the other person accept that the marriage is over.
• Finally, you may just have to be patient and give the other person some time to get to the same point as you. If this is the case, you should be sure not to give the other person mixed signals even though you are remaining in the marriage. If you can’t or don’t want to wait, of course, you can explore other options for divorce.

What if I’m the person who doesn’t want the marriage to end?

• Again, I would definitely suggest marriage counseling if you haven’t already done so, and again, you need to be honest with your spouse about your motives. If that is not an option, you may benefit from individual counseling to help you understand what is happening and what you can do.
• A divorce coach who is trained in helping a person deal with the process of divorce, be it through litigation, mediation or collaborative practice, could also be of help.

The bottom line is that mediation will take as long as it takes. I often get a call from one party and then weeks or even months go by before they make the first appointment for a consultation. Sometimes, even more time passes before they tell me they are ready to mediate. Like all facets of mediation, the timing and pace are completely up to the parties.

Are you thinking about divorce, but your spouse is not? Is your spouse talking divorce, but you don’t feel ready?

As much as I try, it’s almost impossible to simply enjoy a holiday for itself. We are bombarded around the clock with holiday movies and television commercials showing elaborate and bountiful meals around a table full of happy family and friends.  All of the homes have decorations that could rival those found in major department stores. It’s hard not to expect that picture perfect holiday.

If you’re going through a divorce and this is your first holiday without your spouse or without your children, it can be so far from the ideal that it’s unrecognizable as a holiday at all.

Yes, we all know that the holiday, whether it be Christmas, Hanukkah, Kwanzaa or New Year’s Eve, is not about the decorations or the meal or any single celebration. Yet, we all want it to be something special and memorable, if not for us than for our children.

There is no getting around the fact that your first holiday after you’re separated will be different and possibly not the holiday you want it to be, but there are ways that you can do more than just endure the day. In fact, you can actually get through it in a positive way. Here are 5 tips on how to do that:

1. Don’t Do It Alone
   Remember that family is what you make it. Family can be extended relatives you don’t often see or friends for whom you host a celebration.  If you don’t want to do the hosting, there are most likely family or friends who would welcome you into their home to share the day.
2. Change the Date
   If you don’t have your children on the day that you typically celebrate the holiday, make your own special celebration on another day. It’s not about the date, it’s about all of you sharing family time and love.
3. Focus on Other People
   Do something positive to have an impact on someone else. Volunteer at a food shelter, be an anonymous donor to a family in need, or be a dog walker or cat cuddler at a local pet shelter.
4. Start a new tradition
   If you don’t have your children for dinner, then make a very special breakfast for them. If you’re not with your children when they wake up on Christmas morning, then create that same level of excitement and surprise on another morning or at another time even if it means everyone getting in their pajamas at 8:00 at night to open presents.
5. It is OK to be alone
   If you really feel that you want or need to be alone, honor that, but in a positive way. Pamper yourself with a nice meal, a relaxing bath, or anything that will have a positive effect on you. You might sit down and write out your thoughts and feelings or make a list of goals that you want to achieve in the upcoming year.

Of course, these are minor fixes for someone who is going through normal holiday angst.  If you are suffering on a deeper level that goes beyond the typical “holiday blues,” then seek the help you need from a professional.

Is it still going to be tough going for a while? Of course it is. But remember, it’s just one day. It will pass and things will be better.

What special plans or arrangements have you made for getting around the difficulty of celebrating the holiday on your own? 

There are so many issues that a divorcing couple must face:

• How to tell the children
• Where will each live
• Whether or not they can afford to live separately

Starting mediation can easily add to the apprehension, yet beginning mediation can actually be a positive step toward gaining control of your changing circumstances because the timetable, the agenda and of course, the outcome, are completely up to the two of you.

There are concrete issues that need to be addressed in a Separation Agreement and as each is discussed and resolved, parties can feel that they are one step closer to moving onto the next stage of their lives. I provide my clients with a checklist of these issues and to the extent that their discussing them on their own is helpful, I encourage them to do so. For example, most couples will discuss their ideas on a parenting plan before they begin mediation.

In terms of financial issues, I suggest that clients each begin thinking in terms of a budget for their likely future circumstances. Will each be living in a rental, staying in the house or buying a new home? Parties to a mediation should have an idea of what those costs will be so they can properly draft a budget.

It is also helpful to collect all the financial documents necessary for that aspect of the divorce before beginning the mediation. These include:

• Income tax returns
• Current pay stubs
• Bank and investment account statements
• Retirement account statements

The more prepared a couple is for the mediation, the less time and money will be spent estimating income and assets.

Like many of my colleagues, I use a financial software program which permits clients to download a client version of the program at no cost. I ask clients to enter their financial information in the program and then send it to me. I can then print out their budgets and lists of assets and liabilities, so that they can make changes and revise their budgets as necessary.

When you think about it, it makes sense to be prepared for your mediation sessions. Because cost is always a factor for couples facing divorce, the mediation will be more efficient if all of the information is available at the time that you are having your discussions.

Do you have questions about what you need to be prepared for your mediation? 

I love Halloween, and I love being scared. Scary can be fun when it’s within your control, like I am with my Halloween decorations.

• A five-foot replica of Frankenstein’s monster, which dances to the Monster Mash
• A fake graveyard in front of my house, with silly inscriptions on the stones
• Zombie garden gnomes
• A full-size skeleton sitting in a chair on the porch, wearing a baseball cap backwards, a college sweatshirt and sweat pants

It's all more ridiculous than scary.

It’s also fun to be scared when you know you’re safe and nothing bad is going to happen to you:

• If you’re watching a scary movie, all you have to do is turn it off or look away when you hear the ominous music.
• If you go to a haunted house, you may scream and run through it, but you know that no one is going to hurt or even touch you, and it’s all just actors playing their roles.

Yes, it can make you feel anxious, but you can stop it any time and go back to normal.

When I mediate, though, I see that the fear and anxiety that some of my clients feel is much different from the safe, orchestrated scary things running rampant at Halloween. It’s clearly not fun, it’s not make believe and it’s not going away all that easily.

Going through a divorce is one of the most frightening, real life experiences that most people will ever have to endure. You feel as though your world has just turned upside down. The person who you loved and probably called your best friend, will not be there for you in the same way. You’re afraid what your choice to divorce will do to your children. And you’re afraid that you will have to drastically change your lifestyle because you won’t be able to afford to maintain it.

These are not irrational fears, and if you address them head on and take control of the situation, you will be able to handle them better. In mediation, your fears and concerns, rational or irrational as they may be, will all be addressed and acknowledged. Your mediator will help you to resolve your divorce so that you control the outcome. You won’t agree to terms that are not in your children’s best interests or that are going to make it impossible for you to live reasonably.

Of course, there will be changes to your life after you separate, and some of those changes may be unpleasant. But the difference between being a party in a litigation and engaging in mediation is that you will be taking an active role in the process and the decision making. You are taking control of the situation and deciding your future, and which compromises you will make

And when you’re in control, things are not as scary as you think.

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.

They may be similar, but to me, they are worlds apart.

I see anger as something that is of relatively short duration; a totally human and appropriate 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, I see as 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, 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 with a spouse 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 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,” the focus shifts from the past to the future. And so do the emotions.

Do you feel you have moved on since your divorce?  

How does the Child Support Standards Act (“CSSA”) work in mediation? First, you will need to discuss whether or not you are going to apply or opt out of the CSSA.

To do that, you need to know what the child support figure would be if the statute were applied. Your mediator can explain the computation based upon the combined income of you and your spouse.

What income figure should be used?

If one of you is unemployed or underemployed by choice, or the income reported on your income tax return is not representative of the true income earned, the parties may choose to impute an income for the under-earning party.

If one of you is earning much more this year than last year, the CSSA mandates you use the income on your most recent income tax return, but that might not make sense if that income is no longer what is actually being earned. You can choose to apply the CSSA to your current income.

In both cases, you are opting out of CSSA.

How much income should be used?

The statute provides for applying the percentages to $141,000 of combined parental income, but due to the higher cost of living in Westchester, the child support percentages are typically applied to combined parental income of approximately $350,000. The parties may then choose to do the same, or based upon their circumstances, choose to apply the percentages to any other combined income to which they agree. In effect, they opt out of the CSSA because only a court can apply income above the cap.

Joint Physical Custody

The statute does not address a situation where there is no “non-custodial parent.” While case law interpreting the statute provides for the payment of child support by whomever earns more to whomever earns less, in joint physical custody cases that may not make much sense to the parties, especially if the difference in income is not that great.

Instead, they might want to consider a different arrangement where each parent is responsible for the expenses of their individual household, while sharing in direct expenses such as clothing, extracurricular activities, etc.

Or the parties may share direct expenses of the children pro rata to their income, and the party who earns more will pay some amount of support to the party who earns less, so that each can maintain similar households for the children.

In any situation where you decide to opt out of the CSSA, you will need to provide the reasons why you are doing so, to ensure that the waiver of the statute is being made knowingly, and so that your agreement will pass muster with the courts when you seek a divorce.

In mediation, a couple can make the CSSA work for them in a way that best meets the needs of their family, whether that is applying it or opting out.

Will the CSSA work for your family, or not? 

I remember when the Child Support Standards Act (“CSSA”) was adopted in New York in 1989. It was a radical departure from how child support had been determined in the past, and not all matrimonial attorneys welcomed it with open arms. There were many predictions of disastrous results, but the statute soon came to be accepted.

How Does It Work?

1. Combine both parents’ incomes up to the statutory “cap,” which in 2014 is $141,000.
2. Apply the appropriate percentage below, to the income, up to the cap:
   17% for one child
   25% for two children
   29% for three children
   31% for four children
   35% for five or more children
3. Lastly, you determine the percentage of the payor’s income to the combined income, and that percentage is then applied to the total child support figure which becomes the “presumptively correct” amount of child support to be paid to the custodial parent.
   For example: 3 child household
   Step 1:  Father’s income: $75,000; Mother’s income: $50,000; Combined Income: $125,000
   Step 2:  3 children = 29% multiplier; 0.29 (multiplier) X $125,000 = $36,250
   Step 3: $75,000/$125,000 = 60%; $36,250*0.60 = $21,750

The statutory cap increases by the cost of living. You can find the current cap along with a chart giving you the amount of total child support based upon the number of children at Child Support Standards.

What Constitutes Income?

The question of what constitutes income can lead to some debate. It is meant to be as broad as possible, and so it includes not only wages and income as should be included in an income tax return but any other income that may exist. In addition, a Court can impute income to either party and also include certain other expenses that a self-employed person might deduct.

On the other hand, the statute deducts from income some common items such as:

• FICA
• Social security
• Yonkers and New York City taxes
• Maintenance that is going to be paid to a current spouse
• Child support (per an existing order) paid to a child who is not part of the current matter

Along with some other not so common deductions, as listed in the statute.

So, given the definitions of income, it is easier to apply the statute in cases where the parties are both W-2 employees with fairly steady incomes. It is not so easy to apply to parties who are self-employed, unemployed or depend on gifts in lieu of income.

Combined Income

In a future post, I’ll address how parties can opt out of the CSSA in a mediated agreement and make an agreement that best suits their families.

Additional questions about CSSA? Please feel free to give us a call or leave your question in the comments box below.