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.

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.