Do Lawyers Have a Role in Mediation?
I am frequently asked the question:
“If we go to you, do we have to go to a lawyer?”
Or
“Can we just come see you and not use lawyers at all?”
The definitive answer is – Yes, most of the time you will not need a lawyer. But it’s your choice.
The service I provide is “full service” Mediation. I work daily with professionals such as title companies, accountants, Realtors, therapists, so if you need it, their services are available to you. With my help, you mediate the terms of your divorce agreement, and then attorneys I work with will draft the Divorce Agreement. Continue reading
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Change the Agreement? Yes We Can!
As life is ever changing, sometimes events evolve in a couple’s life post-divorce that affect the terms that were agreed to in the divorce agreement.
Although the agreement was signed, executed, and incorporated into the Judgment of Divorce , circumstances at that time were different than they are today. Maybe the husband and wife delayed the selling of a property until after the divorce, or now have different economic needs or maybe they now both agree that they should change the way the equity in the house is divided or the way they money is distributed in the retirement plans. “Is it possible to make changes to our divorce agreement after we are already divorced?”
The answer is yes. Continue reading
Mediation – A Healthy Divorce
I recently met with a couple having difficulty talking to each other because the wife felt that the husband had not been listening to her when she talked about how she was going to support herself and the children after divorce. He was historically the “breadwinner” and she, a stay-at-home mom with a Liberal Arts degree from an accredited college, but as many people have discovered, going to college and getting a Liberal Arts degree doesn’t really prepare you for today’s job market. So after 10 years of taking care of the home and children, the wife was facing the daunting task of looking for a job.
The husband and wife were having a difficult time trying to agree to the maintenance (alimony) amount. Although dividing the assets wasn’t difficult, figuring out an adequate amount for the maintenance part of the agreement was proving to be a sticking point.
Traditionally the purpose of maintenance is to give support over time to the non-monied spouse allowing them to get back in the work force and be self-supporting. This sometimes involves education but more often, it’s just a sum of money, paid out monthly for a period of time based on factors such as disparity of income, the length of the marriage, the health of the parties and their future earning capacity. After the maintenance period has ended, however, it often feels like you’ve have fallen off a cliff because now you don’t have the extra money coming in every month and your skill set isn’t current for today’s job market making it very difficult to get a good paying job.
I asked the wife to not think about the amount of money for a second and tell me what her hopes and aspirations were for herself after the divorce. If she had a choice, what would she like to do?
She said “I want to be a nurse. I always did.” I asked if she had investigated how long it would take and how much it would cost to complete a nursing program. She replied it would take 3 years and cost about $90,000.
I asked her what she thought it would do for her? Her answer was:
“If I get my nursing degree I can get a good paying job and I won’t need alimony any more. My future would completely change because I could not only be self-supporting but also be on a career path that would actually take me somewhere. I could provide for my children and have what I envision is a good life.”
“Well, that sounds like a plan. Now let’s figure out if we can do this.”
They had tentatively agreed to a maintenance amount over a five year period. When we calculated the amount needed for nursing school paid out over 3 years, the amount turned out to be less than the amount of maintenance that they had tentatively agreed to. Additionally, the husband agreed to pay her a stipend while she was going to nursing school. If she wanted to work part time, that was fine, but at least this would provide her with some supplemental income.
Because this education led to a career when she completed nursing school, the husband didn’t feel as if he was just handing her money because she had been married to him. Everybody in the family benefited from this agreement. The kids now had one parent that felt really good about pursuing a dream she always had, and both parents were moving on with their lives in a positive way.
Divorce mediation encourages couples to communicate and cooperate with each other, setting the stage for good things to happen as they and their family move forward. This cooperation sets a precedent for how their parenting arrangement is going to work in the future. And that is a healthy divorce result.
Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY
Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com
Home, Sweet Home – Move Out!!
Recently, I published blogs entitled “Home Sweet Home”, parts 1 and 2, that discuss some of the problems with living together post divorce. While I am not an attorney and don’t do litigation, I have read enough evidence that leads me to believe that living together during a contentious litigated divorce can also result in damage to the children and the
divorcing spouses. After I posted those blogs, I heard about the Friedlander case, a horribly tragic incident in which the husband and wife were going though such a contentious litigated divorce and living together in the same house with the kids when suddenly the husband lost it, killing the wife and both children and then killing himself.
In an atmosphere of fighting and arguing, with or without kids being present, there is always a possibility for domestic violence. Empirical evidence shows that the point of separation is the most critical or dangerous time for spouses with a history of domestic violence to be living together. Even if there is no previous history of domestic violence, the separation/divorce event alone may be enough to trigger a violent response.
Most attorneys will advise divorcing couples to not to leave the marital home during the litigation process. There is a perception that the parent leaving the home may be disadvantaged in winning custody of the children and/or ownership of the home. In the Frielander case, the husband, an attorney and still living in the home, had just lost custody of his children by a court ruling. Which begs to question, could this tragedy have been averted had the couple separated physically during the litigation process.
In addition to custodial and ownership issues, staying in the marital home may keep up the pressure to settle. If one spouse moves out, often the other spouse is no longer as motivated to settle because the home environment is more peaceful.
What I said in the “Home, Sweet Home” blogs is that money is something that you can always earn, but your sanity is what you are jeopardizing by living together in a combative relationship while going through a litigated divorce process. And that process can sometimes take a very long time.
In mediation, the goal is to get through the divorce/separation settlement process quickly by cooperating and problem solving. This often can take as little as six weeks to complete. But for couples that are having a very difficult time and it takes longer than six weeks, we can provide a “Move Out Agreement” whereby one of my attorneys drafts an agreement determining who lives in the marital residence, how the bills will be paid and, if there are children, parenting and support issues. All of these terms are temporary while we are negotiating the settlement.
In light of the new no-fault divorce law in New York, you no longer have to accuse the other spouse of wrongdoing. As couples become more aware that mediation is a viable and more welcome alternative, fewer couples may choose to litigate their divorce. The courts are increasingly recognizing the benefits of mediation for divorcing couples. Many new matrimonial mediation programs are being offered throughout New York State by the various courts including the Supreme Court in Westchester County.
Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY
Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com
The Lighter Side of Divorce
Getting divorced is not a laughing matter. It is a highly emotional time involving many heavy decisions that will affect a couple’s life as they move forward with their separate lives. Every once in a while, however, something happens that gives you pause and despite the seriousness of the situation makes you chuckle. They say laughter is the best medicine, so in that vein, I would like to occasionally share a lighter moment like the one below.
The couple arrived at the mediation session with the husband carrying a suitcase of documents. They had already decided how they wanted everything settled, so this was going to be the “easiest case ever.” Continue reading
Home Sweet Home Part II
Because of the current economic environment, over the past few years I have started to see a lot of couples who want to stay together in the home after they are separated or divorced because they can’t afford to live separately. Unfortunately, my experience with this arrangement has shown that it is very difficult and only works sometimes.
If you and your soon to be ex-spouse do decide to live together after your separation/divorce, there are a number of decisions that must be made.
Continue reading
Home Sweet Home?
Part I
Traditionally, the marital home and the retirement savings are the largest assets that most couples have, but the way we write divorce/separation agreements has changed over the years because of the declining values in the real estate market. Now, in divorce agreements, we not only address how the net equity (profit) will be divided at sale, but we also must address how, if there is a short sale or the house sells for less than the mortgage balance(s):
- Will there be sharing of the remaining mortgage balance after sale?
- Will the couple have to come up with more money if the house is sold but for less than the amount owed on the house?
These are some of the questions that need to be discussed during divorce mediation sessions. With my help, we will outline various options which are available to the couple.
Continue reading
Consider the Children
I was very impressed by an article I read from the Scottish government regarding children and divorce. In 2007, the Scottish government issued a report based on their intention to implement the United Nations Convention on the Rights of Children or “UNCRC”. Article 12 of the UNCRC confers the right to express views on matters affecting children and for those views to be given due consideration. It further says:
“that parties shall assure to the child who is capable of forming his or her own views, the rights to express those views freely in all matters affecting them and that the views of the child are given due weight in accordance with the age and maturity of the child.”
In particular the child is provided with the opportunity to be heard in any judicial or administrative proceeding affecting the child.
Continue reading
Got Conflict?
In New York, as avant-garde as we think we are regarding many social issues and being the economic hub of the United States, when it comes to divorce, New York is just breaking out of the Stone Age. This past year we added a seventh ground for divorce which is the New York No Fault Statute allowing a couple to file for divorce without alleging fault and accusing the other spouse of one of the previous six grounds for divorce which are:
- Abandonment
- Constructive Abandonment
- Inhumane Treatment
- Infidelity
- Imprisonment for three years or more
- Judicial decree (rarely used)
What is it? Is it a Pension Plan? Is it a Retirement Plan?
Many people refer to retirement plans as pensions, but not all retirement plans are pensions, and in fact, most retirement plans are not pensions. A true pension is typically called a Defined Benefit Pension, and can have several components.
Continue reading
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