It’s not unusual for couples to discuss and agree upon an outline for a parenting plan before they begin mediation. When this happens, the mediator’s job is to talk to them about the practical effects of their agreement.

Overnights:
Both parents may believe that overnights during the week for the non-custodial parent would be good for the children. Reality dictates that you discuss if the children can get to school on time and have all of the things needed for that school day. This isn’t meant to discourage weekday overnights but to ensure that the parenting plan works.

Holidays and Birthdays:
It’s also natural for parents to say that they want to share all holidays and birthdays. Initially it seems like that would be good for the children, and since everything you are discussing in mediation is new and probably unimaginable to you, this seems normal. Reality dictates the mediator ask how it would work when one parent starts dating. Again, it doesn’t mean that the couple can’t do what they intended, but they could also decide to build into the agreement an alternate plan if one is dating or if it is just too painful for one to continue the practice.

Weekends:
Even something as simple as the concept of one parent having parenting time with the children every Saturday and the other having parenting time every Sunday will lead to questions. Will this allow each of you to have enough time with the children if that one day is filled with sporting or religious activities?

Relocation:
I always question my clients about relocation by one or both of them in the future. Usually neither of them will voice any plans or even a desire to relocate, but I remind them that circumstances can change with a job or a new spouse.

If it appears that there is a strong likelihood for relocation, it would be addressed head-on, and the agreement would include provisions for how it will be handled.

If a relocation is not imminent or likely, there would still be a discussion to decide if they want a radius clause and what happens if one parent wants to move.

As difficult and painful as it is to do all of this now, the last thing that you would want to do is have to re-mediate because something you thought would work so well turned out to be unworkable. All of these questions are just to make sure that your agreement will stand the test of time. While no mediator can predict each and every possibility that might arise to make your agreement unmanageable, they can try to apply the "reality test" as much as possible based upon their experience, so that the chances the couple will need to come back to mediation again will be very low.

Does your idea for a parenting plan pass the "reality test?"

I remember when the 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 and for good reason. While it is not perfect, it does provide a starting point and some certainty to support across the state.

The statute provides what is considered to be the “presumptively correct” amount of child support to be paid to the custodial parent by applying a child support percentage (17% for one child; 25% for two children; 29% for three children; 31% for four children; 35% for five or more children) up to a certain amount of combined parental income to determine the amount of child support to be paid. The combined parental income amount rises based upon cost of living, and in 2014, it is $141,000. Once you have that figure, you then determine the percentage of the payor’s income to the combined parental income, and then multiply the child support amount by that percentage to determine the amount of child support that should be paid to the custodial parent. You can find the current amount of combined parental income along with a chart giving you the amount of child support based upon the number of children and income levels at https://www.childsupport.ny.gov/dcse/child_support_standards.html.

In terms of income above the statutory cap, only a Court can determine up to what combined income, if any, to apply the child support percentages in consideration of a number of ten enumerated factors, including the standard of living the child would have enjoyed if the marriage were not dissolved, the financial resources of the parents, non-monetary contributions made by the parties and any other factor that the Court deems relevant. A Court can also choose to not apply the CSSA at all based upon those same ten factors.

In a Separation Agreement, the parties themselves can also choose to opt out of the CSSA as long as the agreement provides what the presumptively correct amount would be and lists the reasons why the parents are opting out of the application of the CSSA.

The question of what constitutes income can lead to some debate. It is meant to be as broad as possible, and so it includes all wages and income as should be included in an income tax return, as well as governmental and retirement benefits, annuity payments and investment income whether taxable or not. In addition, a Court can impute income to either party and also include certain other expenses that a self-employed person might deduct, such as depreciation, entertainment and other perquisites of employment. On the other hand, the statute deducts from income maintenance that is going to be paid to a current spouse and child support (per an existing order) paid to a child who is not part of the current matter.

The court also has discretion to include as income a certain percentage of non-recurring payments that are not topically considered income, such as lottery winnings, gifts or inheritances.

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 income. It is not so easy to apply to parties who are self-employed, unemployed or depend on monies typically defined as assets rather than 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 is best suited for their families.

One of the things that I emphasize with clients is that an important part of the mediation process is to make sure that the agreement is durable, meaning that the agreement will work as well for you in practice as it sounds in theory. Of course, you cannot anticipate each and every possible circumstance that might happen in the future, but we do try to address as many contingencies as possible.

I will be addressing future modifications to support payments in another post, and here I am concentrating more on circumstances that could make your parenting plan, which seemed quite workable and reasonable when you signed your agreement, into something that needs a major overhaul or at least a minor tweaking.

Typically, couples discuss and agree upon an outline for a parenting plan before they begin mediation. It’s the job of the mediator to then talk to them about the practical effects of such a plan. For instance, you may both believe that overnights during the week for the non-custodial parent would be good for the children, but have you considered how the children will get to school; the traffic flow in the mornings; or if the children will have all things needed for that school day like an assignment that was started at the other parent’s home or gym clothes? These are not meant to be prohibitions against weeknight sleepovers. Rather, they are simply things that you want to consider and know before you embark on a plan, and talking about them can help to resolve them in advance of a problem derailing your parenting plan.

It’s also natural for parents to say that they want to share all holidays and birthdays. Not only does it seem like that would be good for the children, but when you are mediating your agreement, everything you are discussing in mediation is new and probably unimaginable to you, especially if you are still living together. However, since I know from experience that things can change a lot more quickly than the parents think their situation will change, I will ask that they imagine how it would work when one starts dating. Again, it doesn’t mean that the couple can’t do what they intended, but they could also agree to build into the agreement an alternate plan if one is dating or if it just is just too painful for one to continue the practice.

Even something as simple as the concept of one parent having parenting time with the children on every Saturday and the other having parenting time with the children every Sunday will lead to questions from me such as, if the children are with dad every Saturday, what about special events that mom would want to spend with the children, or what if the children tend to have sports or other lessons every Saturday and dad doesn’t get that much time with them, or do you think that the children might want to have more extended time with both of you on a weekend rather than just one day?

And sometimes, parents just may suggest a plan that simply is too convoluted and confusing not only for them but especially for the children. This is the hardest point of reality testing because the parents have devised this schedule and believe it will work. It might, but I make sure that they know each and every pitfall that might occur by having a schedule so confusing that you need a computer to figure it out, and typically they will either change it or agree to include amendments in the future if it turns out that the schedule is not working for them or the children.

I will also always question my clients about relocation by one or both of them in the future. For the most part, neither of them will voice any plans or even a desire to relocate, but I let them know that circumstances can change with a job or a new spouse. If it appears that there is strong likelihood for a relocation, then we would address it head-on, and the agreement would provide what would happen. If a relocation is not imminent or likely, it does not make sense to spend so much time on detailed relocation provisions which hopefully will never come into play. In that case, though, we still will engage in a discussion, and the couple will need to decide what, if any, terms they want to include in the agreement regarding a radius clause, as well as the ramifications of having any language in the agreement indicating a radius should a parent wish to move with the children beyond the radius in the future.

Often during a mediation when we are engaging in reality testing, I tell clients that I like working with them and that it’s nothing personal, but that I never want to see them again. As difficult and painful it is to do all of this now, the last thing that they would ever want to do is need to revisit the agreement in the future because something they thought would work out did not. So, they understand that I’m not trying to destroy what the believed was the perfect plan but am just trying to make sure that the agreement will stand the test of time. While I cannot imagine each and every possibility that can work to make their agreement unmanageable, I can try to reality test as much as possible so they don’t need to ever come back to me or another mediator in the future.

Admittedly, it is uncomfortable to raise the idea of signing a pre-nuptial agreement with the person with whom you have just agreed to spend the rest of your life. And it’s unlikely to get any more comfortable for you when you actually start discussing the terms of the agreement.

That said, it is a discussion that I recommend anyone planning a marriage have if one of you has accumulated more assets than the other, expect a major inheritance, have children from a previous relationship, intend to start a business or will be obtaining a license for a professional practice.

It doesn’t mean that you believe your marriage will fail or that you are preparing to separate even before you marry. Pre-nuptial agreements also address what happens upon death, a topic that is especially important when one or both of you have children from other relationships and may be obligated to maintain life insurance or other benefits for those children. This will impact the amount of your assets that your spouse inherits and should be addressed before you get married.

Unlike a separation agreement which is required to address certain terms to be valid, a pre-nuptial agreement can address as much or as little as you both desire. I have drafted an agreement that pertained only to one issue (what would happen to a party’s share in a family business in a divorce or upon death) and agreements that addressed all existing assets, future assets and maintenance in detail.

Before I started my mediation practice, I used to represent one party in the drafting or review of the pre-nuptial agreement, and while I endeavored to keep it friendly given that my client was marrying and not divorcing the other party, it still seemed more adversarial than it needed to be since it was mostly my talking to the other attorney without the couple being involved.

On the other hand, mediating the terms of a pre-nuptial agreement will not only keep the couple in control and help to keep the process non-adversarial, but it will also allow the couple to have a give and take discussion about topics that while unpleasant to discuss before the marriage could be devastating to address after the marriage. Additonally, because of the open nature of the discussions that a couple has in mediation, things come up which might not typically be included in a basic pre-nuptial agreement.

For example, I was with a couple who had both been married previously, but only one of them had children. While we were discussing what they wanted regarding property that was accumulated during the marriage, the soon to be husband posed this to his soon to be wife. If he received a major bonus and wanted to give a very generous gift to his children from that bonus, would he be able to do that or did he need to ask permission? Even though they had been living together for years, they each kept separate accounts, and he had a real concern about losing the control and sole discretion over “his” income that he had enjoyed since his divorce. She then explained how it would make her feel if he kept her out of the decision making process when it came to what she considered “their” funds and that she wouldn’t consider making a big gift to one of her family members without telling him first. Ultimately, they came to an agreement that each would be able to dispose of up to a certain amount of their income/assets as gifts to family members with no questions asked, but that anything over that would need consent of the other.

I can imagine that this would have gone quite differently if instead of having the discussion in a mediator’s office before they married, the wife was going through their accounts and was surprised to see that her husband had given a substantial amount of money to his children.

So, don’t be afraid to go through a little bit of discomfort now to avoid suffering later, and have that difficult conversation about a pre-nuptial agreement with your spouse-to- be before you marry.

Previously, 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 expresses blame and fault against the other party continually or says things like “I didn’t want this, so why should I have to agree to...” But 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 or constantly changing previously agreed upon terms.

When clients express anger and blame, it is most often because that person needs to say it, and even more importantly needs to have it acknowledged. Over time, that party will feel that he or she was heard and can come to accept that it is time to move on. If not and such comments are preventing the parties from reaching agreement, then the mediator can try to address it either with the party in a caucus or with both present. Or, the parties or one of the parties may benefit from a divorce coach.

On the other hand, 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 party. The mediator can then bring it to the attention of the party, again, either in a caucus or with both parties present, depending on which would be better received. If, however, it reaches the point where cancellations, refusing to come prepared with disclosure or constantly changing agreed upon terms makes the mediation untenable, the mediator needs to address that and withdraw if necessary, and mediation may not be an appropriate resolution for that couple.

I did have a mediation which continued for several years. It was very difficult in the beginning because the husband felt very strongly about remaining married, and the parties returned sporadically, sometimes having a year pass in between meetings. Ultimately, the reluctant party did come to accept the end of the marriage, but he could only do so on his own time. This was prior to no fault divorce having been adopted in New York State, so the other party had no option to litigate because she had no grounds for divorce, but even if that wasn’t the case, I suspect that they would not have litigated because neither party wanted to litigate. Even though the husband did not want to get divorced, he also did not want to end up in a bitter Court battle, and the wife acknowledged that she had no choice but to let the husband come to terms with it 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.

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, and the other party may not even have come to terms with the concept that the marriage will come to an end. What can each of them do?

When I used to litigate, you needed grounds for divorce, and if the person who wanted the divorce had no grounds and the other person was hesitant to divorce, then the person who wanted the divorce would either have to stay married or be prepared to make a very generous settlement offer. Now, New York has no-fault grounds for divorce, but the parties need to settle all parenting and financial matters between them before a divorce judgment will issue on the grounds of irretrievable breakdown of the marriage.

Similarly, in mediation, you can’t proceed unless both parties agree to the process. That does not mean that I have not seen a client who clearly states from the beginning that he or she doesn’t want the divorce but agrees to mediate because they see the inevitability of divorce and prefer mediation to litigation.

What if your 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 yet. Sometimes, just seeing 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, but you should be sure not to give the other person mixed signals even though you are remaining in the marriage.

What if you’re 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 help you act. 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 first get a call from one party and then weeks or even months go by before they make the first appointment for a consultation. Then more time passes before they tell me they are ready to mediate. Like all facets of mediation, the timing and pace of mediation sessions are completely up to the parties.

One of the most fascinating aspects of mediation is how the process can transform someone who feels reticent or insecure in decision making.

At the initial consultation, clients often say that they are concerned that within the process of mediation they may not “get a good deal” and question if they are 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 client’s ability to feel comfortable with the process and secure that the decisions they make are sound.

I try to reassure clients that within mediation, they can obtain all of the help and guidance they need in order to make decisions that are good for them and your family.

You can have a consultation with an attorney before you begin mediation so you have an idea of your legal rights and responsibilities, as well as discuss terms of settlement you can propose in mediation. You can continue to consult with the attorney during the process if you like or even bring your attorney with you to the mediation if you feel that you may need that support and it is agreeable to your spouse.

You can also meet with a Certified Financial Divorce Planner who is trained to help you make a budget and assemble the financial information you will need to proceed with the divorce, as well as educate you in terms of financial matters so you feel comfortable in the process. This person can also participate in the mediation if it would be helpful and both parties agree.

By way of example, I saw a client as a consulting attorney who was in the process of mediation. She had attended a few sessions, and they had reached tentative agreements on most major points, but the client was unsure and uncomfortable with the terms and her ability to make ends meet, but said she did not voice them in the mediation because her husband had a much stronger personality.

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

I strongly urged to the point of insistence that she only return to mediation with either the Planner or me in the session. I thought that the Planner would be more acceptable to her husband, and she agreed.

Six months later she returned for a consultation with a very different plan and a very different voice. She seemed like a different person from 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 Planner.

We not only discussed what she would propose but how she could propose it in a way that would enable her husband to hear it and consider it rather than dismiss it out of hand.

She told me that the mediator suggested that I attend the next session, and when I asked what she thought of it, I was thrilled 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 the empowering aspect of mediation, that attorney likely would have told her that she should not be in mediation and needed an attorney to advocate on her behalf. She probably would have ended up with a similar settlement, less extensive legal fees of course, but she never would have gained the strength and knowledge of being her own advocate.

Doing what you need to do to empower yourself to make good decisions is something that will be to your benefit not only during the mediation but when it has long since passed.

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.

I believe, however, that beginning mediation can actually be a positive step toward gaining control of your changing circumstances. The two of you set the timetable, the agenda and, of course, the outcome.

There are concrete issues that need to be addressed, 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 issues which need to be addressed by them in a Separation Agreement, and to the extent that their discussing them on their own is helpful, then by all means 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 they 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 get the financial documents required to have a meaningful discussion on the financial aspect of your divorce in place before beginning the mediation, such as income tax returns, current pay stubs, bank and investment account statements, retirement account statements and the like. The more prepared a couple is for the mediation, the less time and money will be spent in the mediation 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. They can then make changes and revise their budgets as necessary.

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, so it makes sense to be prepared.

Even though mediation is a process in which the parties themselves make an agreement that works best for them and their family, I have yet to meet clients who are not interested in or choose not to be informed as to what the law provides.

As a mediator, I think it is important for clients to know what the law provides and what might happen if a court were to determine the outcome of their divorce because I feel it is impossible for them to waive a right without knowing what that right may be. The only problem is that there is a plethora of cases in which opposing attorneys are fighting over what the law provides, so usually I give my clients the law as a range of possibilities or let them know what might be a likely outcome but stress the uncertainties that are inherent in the court process.

Of course, I do not and cannot give legal advice to either or both of the parties since that is well beyond the role of a mediator. Instead, I provide objective legal information so they can make decisions knowing the impact of the law.

I will then emphasize to them that they are free to explore many other options to reach a resolution that is particularly suited to them. I consider the application of the likely outcome if they were to go to court as but one of the choices before them, and in my experience, clients tend to achieve a result that is similar to that which may occur in court but will have been tweaked to meet their particular needs. Moreover, if a client chooses to waive what would be considered a right under the law, I will explore the reason why to insure that they are doing so with full understanding of his or her right while respecting their right to determine the outcome of their divorce.

As a mediator, I do not insist that my clients use review or consulting attorneys as a matter of course. I feel that the self-determination of the clients in mediation is paramount and that this extends to the decision of whether or not he or she retains an attorney. However, I do recommend that clients seek the advice of an attorney at the very least before signing a Separation Agreement because I think that it is important for clients to get the kind of legal advice that a mediator is not permitted to give.

Also, on very rare occasions, I will insist that a client consult with an attorney if I feel that the person is not understanding the ramifications of an agreement or if I feel that the validity of the agreement might be in question if the person does not have independent counsel.

For the most part, however, I think that if a party to a mediation understands the terms of the agreement, his or her rights under the law and the consequences of executing the agreement, the choice of whether or not to retain counsel lies with the client.