Is Your Consulting Attorney a Mediation Proponent? [VIDEO]

When you involve a consulting attorney, you want one who is a proponent of mediation. One who will help you acquire the skills and tools to advocate for yourself. The discussion in mediation can then be more mutual and result in terms that are more reasonable. In mediation, parties are empowered by making their own decisions and being an advocate for themselves.

Trouble Making Decisions With Your Co-Parent? [VIDEO]

You're going through a separation and your communication with your co-parent is awful. You fight about everything. You're wondering: ''How are we ever going to be able to agree upon major decisions about our children, and what are we going to do if we can't make any decisions?'' Your answer to that might be: ''Well, maybe I should just say I'll be the sole decision-maker and I'll ask for sole custody.'' While that sounds rational to you, it's not going to have the same effect on your co-parent.

Feeling Vulnerable When Mediating? Professionals Can Help [VIDEO]

If your spouse has some financial or legal knowledge that you don't, you may feel at a disadvantage in mediation. But you don’t have to give up all of the benefits of mediation just because of your spouse’s profession. The answer is to seek professionals who can help you to become empowered and feel comfortable in mediation, so you can properly advocate for yourself, and make the best decisions you can.

Is Your Child Expecting a Drama-Free Wedding? [VIDEO]

There are many special occasions to share in your life and the lives of your children. When divorcing, however, those occasions can become mini-battlegrounds, causing discomfort to visitors and your children. If you have children, you will be co-parenting for life. In mediation, we can build in ways to handle conflicts as the lives of you and your children move forward.

Enabling the Pension Discussion [VIDEO]

Strong emotions can arise when you are talking about distributing a pension. By explaining why each of you feels entitled to the pension, you can open the door to a productive discussion and start talking about options in a way that recognizes what you both need and what your expectations are. Through that discussion, you may be able to reach a settlement that's going to meet those needs and expectations.

Is the Pension Asset Treated Differently in a Divorce? [VIDEO]

To the extent that your pension was accumulated during the marriage, it would be treated like any other assets subject to distribution. But there may need to be more to the discussion than just what the law provides.

Are You Languishing? [VIDEO]

Since I recorded this video two weeks ago and now at posting, NY is opening up! Despite this great news towards normalcy, I think many people are still feeling unsettled. In his article in the New York Times, Adam Grant describes these feelings as “languishing.” You aren’t clinically depressed but you are still not thriving. It’s hard to focus and you just don't feel like working. Sound familiar?

Postnuptial Agreements

{3 minutes to read} The idea of a prenuptial agreement is familiar to most people — an agreement that a couple can enter into before their marriage that can provide how property and debt will be distributed in the event of death or a divorce. It can also provide for paying or waiving spousal support. But what exactly is a postnuptial agreement, and why would anyone want one?

A postnuptial agreement is an agreement that a married couple can create to do the very things that a prenuptial agreement can do in terms of spousal support and distribution of property and debt. While you can include provisions about child support and custody, those provisions would still be subject to a court’s determination as to the best interests of the children.

Provisions regarding children aside, pre- and post-nuptial agreements will be enforceable if validly executed and the following factors are met:

The agreement provides benefits for both parties.
There is full and complete financial disclosure.
Both parties have had the agreement reviewed by an attorney.
There is no fraud, duress or undue influence.
The agreement is properly executed in the same manner as a separation agreement.

The main reason why a couple would want to execute a postnuptial agreement is that it can be a way for them to continue the marriage. They can be going through a difficult time, and it’s possible that having financial matters settled can help them feel more inclined and comfortable in working with a mental health professional to remain married.

Here are some situations where I have seen postnuptial agreements benefitting a couple:

1. One party accumulated a lot of debt without the other’s knowledge. The other party was upset about it and wanted to be sure that they would not be liable for their spouse’s debt and any additional debt that the other may accumulate.

2. The parties agree that their relationship needs some help to repair it, but one or both are afraid of entangling finances any further. They fear sharing future assets and income if they cannot successfully save their marriage.

3. The parties agree that one of them should stay home with the children full time, and not work. That person wants some security in terms of support if there is a future separation since they gave up a secure job and career to remain with the children.

Entering into a postnuptial agreement doesn’t mean that you are ending the marriage — in fact, it can help you to save your marriage.

Why You Still Need Mediation Even If You Settled Everything

{4 minutes to read} I often receive phone calls from potential clients telling me that they have settled everything and just want me to write up their agreement. When faced with this request, I explain that this is not what I do and why mediation would still be important even if they have discussed and agreed upon terms.

Terms that were Not Addressed

Even if there are no minor children, it’s difficult to navigate through all of the terms that need to be considered in a Separation Agreement on your own. The concept of marital property in New York is very broad, and you may not have even addressed assets that, in New York, would be considered marital property. If a marital asset is not addressed at all in your agreement, not only have you given up a right which you didn’t know you had, but it can cause problems in the future if the enforceability of your agreement is challenged.

If you have minor children, the likelihood is even greater that there are issues that were not addressed. You’ve probably considered decision making, a schedule of access, holidays and vacations, but to have a comprehensive agreement we would also discuss relatively minor points such as transportation for access, document retention and sharing, changes to the schedule going forward, rules for cancellations and major things like what happens if one of you wants to relocate to a distant location.

You May Not Be Aware of the Law

You can find New York’s child support and maintenance calculators online, but you may not know what to do about income over the caps. Or that a budget is the best way to determine if the support calculations will be appropriate in your case.

In terms of property, you may believe that something is separate or marital based upon what makes sense. However, that may not be the case in the sometimes arcane application of the Equitable Distribution law.

Of course, you may opt out of certain provisions of New York law, but you do need to know what the law provides before you can consider doing so and make an informed decision.

You May Not Have Thought about the Future

In mediation, you will be asked questions that will test what you have agreed upon against changing circumstances, such as:

What will happen to support if one of you loses your job or makes significantly more money than you are making now?
What happens with your access plan as your child becomes older?

It is important that your Agreement encompass as much as possible in terms of changing circumstances so that you never have to return to mediation, or even worse, go to Court.

I think it can be helpful for clients to discuss some terms on their own if they are able to have productive discussions. Those discussions can enhance the mediation process, but they don’t replace it. Divorce Mediation is more than just agreeing on terms and writing them into a Separation Agreement. It is a process that ensures that you understand the legal and practical implications of the terms of your agreement, as well as both of you having your needs and interests met by those terms.

Mediating via Emails

{3 minutes to read} I understand that there are some mediators in favor of mediation via email. Those that I have encountered are conducting commercial or other multi-party mediations. The positive aspects include:

easier scheduling;
parties from other states, or even countries, can participate without travel or time zone constraints;
parties can take time to draft an appropriate and more reasoned response; and
parties can easily find information from prior “conversations.”

It’s been my experience in family mediations, though, that mediating via email is problematic.

Of course, I use email for communicating to clients at the same time in terms of scheduling, the initial forms and letters, and sending drafts of agreements. To actually have substantive discussions though, mediation via email has not proven productive.

A lack of nuance and intent.

Reading words on a screen without the context of the tone of voice or facial expression can be very off-putting. Some phrases seem harsh and can convey a dismissive or angry tone that the person did not intend. On the other hand, a person might be more prone to email something provocative that they would never say in person.

Even if the mediator is willing to try to intervene and help the discussion, by the time the mediator enters the conversation, the email chain could have gone on for hours — and without any attempt at a mutual understanding, the damage that could derail the mediation has already been done.

Partial or non-responses are given.

In an email, it’s easy to respond only to those comments/requests you want to and ignore what you do not want to answer. I have read email chains where the parties seem to be having completely different discussions. An email can begin with a party raising three points but the response only references point 2. The reply then ignores the response to point 2 and brings up point 4, and so on and so on...

The responses are not in real-time.

While there is a benefit to being able to ponder a statement and then craft a response, delay adds to the frustration of the other party. This can make a difficult issue even more difficult to resolve, especially if follow-up emails are sent demanding a response.

I also believe that in family mediation, an immediate reaction from the heart can be quite powerful and may not be substantially conveyed in an email that has been reviewed and edited for perfection.

In the long run, it costs you more in fees.

It takes billable time for your mediator to go through the email chains and try to piece together what, if anything, has been resolved. Invariably, there will be a point that is missed or a response that is not clear when the mediator summarizes the numerous emails. That can then start the whole process over again.

If there are issues that come up in between meetings, I am more in favor of scheduling a phone call. Then, when necessary, I can intervene and be sure that everyone understands one another and the agreements that are being made.