In a matrimonial consultation, the attorney will give a lot of legal advice and information in a very lengthy meeting. My initial consultations are limited to a half-hour and all we do is talk about the process of mediation. In that meeting, the parties meet me and learn about how mediation works. Most people who call me are not familiar with mediation, and at such an emotionally fraught time in their lives, I can't imagine that they would want to embark upon a process with which they are not familiar.

After my last video on grace, a colleague asked if I had any examples of parties showing grace in mediation. Actually, I have many but one from several years ago sticks out. The husband had done something that not only irreparably damaged the trust between the parties but also had a financial effect on the whole family. Even under those circumstances, the wife was able to show compassion and grace to the husband.

I became intrigued with the idea of grace after hearing an interview with Kirsten Powers about her book Saving Grace. A lot of what she said and wrote in the book really resonated with me. Especially in the last several years — we've been treating people with whom we disagree in terms of beliefs and ideas, not only with a lack of grace but with a lack of humanity. We just see them as the sum total of their ideas, as opposed to individuals with whom we may have something in common, even though we disagree.

No one can tell you how long your divorce will take. If you are litigating, you are at the mercy of your attorney’s schedule, your spouse’s attorney’s schedule, the judge’s timetable and the court’s agenda. This can increase the level of anxiety and uncertainty that you feel. In mediation, the timetable is up to you and your spouse.

The term Add-On describes expenses that are in addition to the standard child support expenses. There are mandatory add-ons outlined in the New York Child Support Statute (CSSA) but what about all the little or not so little extra expenses such as extracurricular activities for the children, tutoring expenses, birthday party expenses, etc. This video discusses those expenses and offers several ways divorced parents may decide to address them. 

When divorcing, determining the income base for child support can be tricky, especially if your income changes from year to year, or is not consistent due to commissions and/or bonuses. This video outlines a couple of approaches that can help you figure out the most effective way to deal with income fluctuations.

{4 minutes to read} The most typical way a pension is divided would be through a Qualified Domestic Relations Order (QDRO). A QDRO provides that, at retirement, the marital portion of the pension will be divided in the way that you have agreed upon in your Separation Agreement, usually 50%. The marital portion is the part that accumulated during the marriage.

But you’re in mediation, so you don’t have to do what is typically done. Especially if the QDRO doesn’t address the strong emotions that I described which tend to arise in pension discussions.

Present Valuation

One thing that you can do to provide yourself with other options for settlement is to hire an actuarial company to compute a value for the pension, as of the date you agree to use, for valuing your assets. 

Offsets 

Then, when you have that value, you can decide if you want to offset it against other assets, such as the equity in your home; or other retirement assets, bank, or investment accounts. The owner of the pension (titled spouse) will be entitled to all of the pension and the other spouse will have all of the agreed-upon assets. (You may need to impact the assets being transferred for income taxes so that the values you’re exchanging will be equal after income taxes are paid.)

Partial Offset 

Maybe there are not enough other assets to equal the value of the pension, or maybe the non-titled spouse wants some of the pension, even if it’s a smaller amount. You can do a partial offset by using a percentage of the present value against assets to the non-titled spouse who would then get a reduced percentage in the pension. It takes some high-level math to figure this out, so you might want to use a financial professional. 

Knowing Waiver 

After a discussion about both of your needs and interests in regard to the pension — and you have reached an understanding of why it is important to each of you — you should also discuss what your relative financial positions are likely to be at the time you expect to retire. 

What if the titled spouse will be solely relying on the pension in retirement and the other spouse has separate property that will enable them to retire comfortably? Or maybe the titled spouse is much older and will be retiring soon, and the non-titled spouse feels that they will have much more time to build up their own retirement assets. 

In those situations, the non-titled spouse may be willing to waive the pension in exchange for more support or another asset. This may not mathematically equal the value of the pension, and it should be thoroughly discussed as to why the waiver is occurring. For a knowing waiver, It should also be clear that the non-titled spouse understands the value of what they are waiving, their entitlement to the asset under the law, and has reality tested the effect of the waiver as to whether or not they can afford it.

As long as you are not looking at mediation as a zero-sum game and are both willing to engage in the kinds of discussions that can lead to understanding the other, you have options when you are discussing how a pension can be divided. And whether the result is having the marital portion of the pension equally divided by the QDRO, a full or partial set-off, or a waiver in whole or in part, the decision would be one knowingly made by you, and a determination which you can accept. 

Family Court Mediation is a topic I’ve never spoken about, but I have been working with clients in Family Court recently. Family Court is a very busy court and takes many months and years to get through the process. Mediation is a much more streamlined process. First, mediate, but if you are already involved in Family Court ask about mediation and see if you can get into the Family Court Presumptive ADR Program.

Couples with opposite personality traits may thrive as one’s style is countered by the opposite style. When they divorce, the characteristics that attracted them to one another can now seem annoying and negative. Discussing between yourselves can lead to fights, but mediation can allow you to frame your differences in more positive ways.

If one party takes their separate property and puts it toward a jointly owned home, they may be entitled, by NY law, to a separate property credit when divorcing. This can be difficult because people don't lead their married lives in anticipation of getting a divorce, so the separate property credit can have both practical and emotional consequences.