While marriage is the usual path when two people are in love and want to live together, some couples decide to live together without being married and without bothering to get a cohabitation agreement. This may be all well and good until it isn’t. Without the Agreement, when the couple breaks up or one party dies, there can be a slew of problems around the joint property acquired during the relationship. If you would like more information about mediation, check out my website — ClarePiroMediation.com.

{3 minutes to read} When I meet with clients who will have difficulty in making joint decisions about their children after the Separation Agreement is signed, the first thing we do is discuss a structure that will help them.

If their level of conflict is so high that even after such a process, they STILL will be in conflict, we will discuss if they could agree to one parent making the final decisions. Or having one parent make final decisions regarding education issues while the other makes final decisions regarding medical issues.

If they are unwilling to have the other parent be the final decision maker in any capacity, then I will ask them to consider appointing a Parent Coordinator (PC). Although the PCs whom I would recommend are also trained as mediators, their role is quite different.

• The parties enter into a contract with the PC so they can easily address any issues that come up in implementing their Separation Agreement.
• If the PC’s attempt to settle the issue through mediation is unsuccessful, they will gather the necessary information to make a recommendation.
• The PC can speak to the child, family members, caretakers, teachers, doctors, and mental health professionals treating the child.
• The PC can make a recommendation based upon the information they have gathered and their experience with similar issues.
• If the parties agreed to this in the contract with the PC, the PC could make a binding recommendation, subject only to a party’s right to contest it in court.
• The PC can also help the parties implement their Agreement on issues like being late for access, holiday schedule disputes, and the like.

Without having a PC available to them, the parents would have no option but to file a petition in Family Court if they cannot agree on an issue or decision, and mediation is unsuccessful. This typically results in a multitude of petitions and cross-petitions, a great deal of emotional trauma for the parents and the children, and nothing being accomplished in any semblance of a timely fashion.

When clients express interest in the idea of a PC, I provide them with a list of recommendations and advise them to research them to see if they can agree upon the appointment of a PC plus an alternate. I will then include those professionals in the Agreement so that if an issue arises, the process is there and ready for them to use when they need it.

While mediation will always be the first option to me, a Parent Coordinator is something to consider as an alternative to being stuck in an endless loop of court filings.

I remember when I used to represent clients in adversarial settings long ago, I would have some clients who would win in the sense that they got what they wanted but they weren't happy. I also had some clients who settled, and they weren't too happy, either. Now, I am definitely not saying that all mediation clients are happy. Happiness is a tough concept when you're talking about the end of a relationship but I often see a level of contentment in mediation clients, which can be the best answer to the question. If you think that mediation is the process for you, check out my website — ClarePiroMediation.com.

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.