“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. I will email the agreement to you and conduct a review session where we go over the Divorce Agreement and you sign the documents. I will notarize them and you are then legally separated. This whole process beginning to end is about six weeks. If you choose to proceed to divorce, I will refer you to someone who will file the divorce action for you at a discounted rate.

There is no statutory requirement that before signing a Divorce or Settlement agreement you must have an attorney review it. In some cases, there is really nothing to review; you have very few assets, very little debt, no children, and no businesses so there really wouldn’t be much for an attorney to look over.

In other cases, things are a little more complicated because there are more assets to be taken into consideration or there are businesses and multiple properties that require business valuations. For these I would suggest attorney review and will provide you with a list of “mediation friendly” attorneys I have worked with. Not expensive. Well worth it. But again, it’s your choice.

And then there are cases we call “high asset couples.” Complicated portfolios, sometimes international holdings valued in other currencies. Often one spouse has been handling all the finances individually and the other spouse really doesn’t know much about them. For these I have created kind of a hybrid process whereby I might suggest that we bring in lawyers and CPAs at the beginning of the mediation process to make sure everybody is clear on what is being agreed to. As the mediator, I can control the flow of the conversation and make sure that the attorneys aren’t posturing and that the negotiations do not take longer than they need to. In these situations, the attorneys’ roles are not to negotiate for their clients, but to be advisors. Sometimes, I will meet with a couple beforehand and work out the framework of the negotiations before bringing everybody else in. This process is only appropriate for high asset couples.

For a majority of the couples I see, they are clear that they do not want lawyers negotiating for them. I’ve had couples that went to attorneys before they came to mediation just to get an idea of where their settlement should be. And I’ve had couples go to attorneys after the Settlement Agreement is written and the terms have been negotiated so that they are satisfied that what they negotiated is a reasonable deal.

Mediators are not anti-lawyer, but we prefer the husband and wife talk to each other and do their own negotiating not the attorneys doing it for them. This direct communication between the husband and wife fosters cooperation and sets the pattern for how they will communicate with each other going forward. My experience has shown that parenting issues are addressed in a more cooperative way if the couple feels they have gotten a fair economic settlement, so the whole family benefits.

So, do lawyers have a role in your Mediation? Now you have the information to make your own decision.
 
 
Please feel free to ask a question, comment, or request more information in the Comments Box below. And don’t hesitate to forward this blog to anyone you know who would be interested in reading it.
 
 

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com

The answer is yes. You can write an addendum to your agreement that includes the changes and then file it with the same court where you filed your Divorce Agreement. The clerk will put the documents together to show that an addendum to your original agreement has been written reflecting the new terms.

The Children

It’s more common that the changes that are made are not just economic changes but more often address changes in access visitation schedules. When an access visitation schedule is created for the non-custodial parent in a Divorce Agreement, and the children are young, their needs change rapidly as they get older. When you entered into the agreement the children may have been pre-school age, but now are in school all day. At this point the access visitation schedule needs to be adjusted because vacations, holidays, and other events must now work around the child’s school schedule. In addition, they will have activities, summer camp, or maybe regular religious training.

When the parents are on good terms and have been cooperating, they can make the changes on their own. However, when things aren’t going well between them, a mediation session can help. Usually a new schedule is agreed to and any outstanding issues are resolved fairly quickly.

A New Partner

Another change that is often made to the Divorce Agreement happens when you have a new partner and enter into a serious relationship. The statistics tell us that this most often occurs within 5 years after divorce. This new relationship will change your life significantly and as a result sometimes your divorce agreement needs to be modified.

Relocation

The issue of relocation is where one of you wants or needs to move away whether due to another relationship, a remarriage or a new job offer that would require you to move a distance away that would make it difficult for the non-custodial parent to see the children. Although often litigated, changes to the relocation clause can be accomplished in mediation.

So, don’t despair or worry that your divorce agreement is written in stone and cannot be changed. Returning to mediation to modify your agreement is easily done and not expensive.

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com

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

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 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.” The husband had a master index of all the financials which were labeled, color coded, and tabbed. When I said I was very impressed with how prepared “they were”, the husband beamed with pride and the wife looked away. Their body language indicated this was the way things ran during their marriage; the husband in charge of the finances and the wife trusting he would do the right thing.

During the mediation, I began reviewing the financial statements for their home, assets and debts. As we started to assemble their financial overview it became clear they were in a lot of trouble:

• The house was listed for sale at $700,000.
• They had a first mortgage of $600,000.
• A home equity loan of $75,000.
• A tax lien of $40,000.
• A student loan of $60,000.
• Credit card debt of $30,000.
• Taxes on the house were due and paid separately at $30,000 per year.

I asked them how they were able to get mortgages totaling more than the house was worth. They said three years ago the banks allowed them to mortgage 80% of the value of the house, but now with the depressed value of real estate, they had negative equity in their home. Their comment after reviewing this grim scenario? – - “ But it’s a beautiful house”.

Moving on, I asked how old they were. Both were in their mid-fifties. I asked about retirement savings. What kind of plans did you make for retirement and how much is in the accounts since we have to calculate the marital portion to be included in your Separation Agreement. The answer? We have no retirement savings.

So far while I had a husband and wife agreeing to the terms of their divorce agreement, but there was no equity in the home, they were a hundred thousand in personal debt, no retirement savings, and a tax lien against the house.

My next question had to do with employment. So what kind of jobs do you have? The wife answered she worked part time as a librarian.

The husband? He answered proudly: “I’m a financial planner”.

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com

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.

• How are you going to pay for expenses in the house.
• What percentage should each of you pay?
• What if one of you decides to get re-married?
• What if one of you wants to move out sooner than anticipated?
• If you start to date others how will this affect your ability to live together with your ex-spouse?
• What if you don’t agree on when the house should be sold and who determines the selling price?

These are only a couple of the reasons that your initial plan may not look so good several months after you make it.

I have had a number of couples that wanted language in their settlement agreement that says they will keep the house for 1 to 5 years and are going to live together in the house after separation and divorce. On paper it looks workable, but most of them eventually call and need to change the agreement because they are starting to date other people and things are getting complicated or some of the reasons they got divorced in the first place are making it too difficult to live together in the same home. They now want to come in and settle post-divorce issues that might have been avoided with better planning.

Based on my experience, I have an in-depth discussion with couples who indicate they want to go this direction before drafting their Agreements. I explain what other couples in their position have experienced. I discuss the pitfalls of living together for extended periods of time after separation and divorce such as agreeing that one of you will pay for all of the expenses on the house until sold with no specified end date or locking yourselves into not selling unless a certain sale price can be realized.

The information I pass along will be helpful as a couple works out the terms of their separation settlement agreement. The goal is to come up with a plan that will work right from the start as well as in the future. It makes sense to base the agreement on what you and your spouse want, taking into consideration the results of other couples’ experiences which may have succeeded or failed.

At Your Divorce Mediator.com, your separation/divorce agreement is not just a calculation of how to split up the assets and debt. It is creating an agreement with language that addresses all of the issues that are important to you as well as the required statutory language and avoiding decisions that could potentially cause you problems as you move forward with your lives. This plan is a road map to your future, so let’s work to ensure that it has as few potholes as possible.

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.

When one spouse decides that they want to keep the house, perhaps buying out the other’s share or selling the house at a later date, i.e. the children graduating from high school. Based on my experience, I will explore with the couple what has worked and what doesn’t work when deciding on a plan to divide the assets. I ask questions like:

• If you are trading off the equity in the house for your interest in the spouse’s pension, can you really afford to maintain the home?
• Can you afford to pay the mortgage, taxes and home owner’s insurance with your income alone?
• Do you know how much it costs to maintain your home including the mortgage(s), utilities and other expenses?
• If both of your names are on the mortgage and there is a buy-out, does the house need to be refinanced?

My experience has been that $4,000 to $6,000 a month is pretty much what it takes to carry a home with a $200,000 mortgage. If you have a net monthly income in that amount, are you willing to spend it to maintain the home?

It is a reality now that homes are worth significantly less than they were a few years ago. If you sell and buy in the same market, it’s not so horrible because even though you are getting less for what you sell, you are paying less for what you buy.

During divorce mediation, couples often discuss a plans to maintain the home together as co-owners for a period of time even after divorce. If the couple elects to do this they need to address which expenses each is going to pay or how they will split the total expenses. Are you going to have a joint checking account that is dedicated to pay for the expenses for the house and if so, how are each of you going to contribute to that account? Or are you each going to pay the expenses separately?

If one of you lives in the house and the other maintains co-ownership, who is going to pay repairs? Will one of you pay for small repairs and are you going to share the cost of major repairs?

If you continue to own the marital home subsequent to divorce, while you may have owned the property by tenants by the entirety, after the divorce it will change to tenants in common which means each of you have a 50% interest in the house. When you sign the separation agreement, you usually give up your right to inheritance, so any joint asset such as the marital home, will no longer pass to the surviving spouse by operation of law. As tenants in common the survivor will have a 50% share in the house and the decedent’s estate will have a 50% share.

There are a lot of considerations when owning the marital home post divorce such as decisions on how to maintain the home, the level of repair and maintenance you would like to do. This is something that will be discussed thoroughly during the mediation process and I will explain all of your options before any decisions are made.

Prior to the economy taking a downturn there was a lot of equity in the marital home but now things have changed. Not only is there very little equity in the house, but some couples have been using the money in their retirement plans to pay the bills. One of them may be out of work and trying to get a job, so they no longer have as much financial flexibility to negotiate trade-offs like they used to. All of this has really changed the way we negotiate during the mediation process because there is so much less money to work with.

I know this sounds complicated and a bit overwhelming, but during the mediation process, I will walk you through all the options and based on my experience will share with you what I know works so that a couple doesn’t need to come back to mediation post divorce to resolve lingering issues.

In Part II, we will discuss the advantages and disadvantages of living together in the marital home after the divorce.

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com

“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.

I found this fascinating because in a divorce proceeding who is more affected than the children? The adults are adults. They can understand what is going on and can handle the ups and downs, but the children are often incredibly impacted by the divorce and not sure how to handle it. As children, their voices are infrequently heard and they are rarely given the opportunity to speak for themselves. In a divorce court proceeding, they would have a Law Guardian appointed to them to represent their interests and speak for them. The Law Guardian is an attorney who will express what he or she thinks are their desires, but when it gets put in a legal context, sometimes the message is lost.

In a divorce court setting, judges can have an “in camera” meeting where the child or children meet with the judge in the judge’s chambers to have a private conversation. This is generally done so the judge can try to get a feel for what is going on in the family setting from the children’s perspective. The children and parents are told that what the children say is not going to determine the outcome. The judge is only interested in their perception of what goes on in the home and the parents’ relationship and uses the best interests of the child standard established in Tropea as the basis for the judge’s determination.

As a divorce mediator, I have worked with couples whose children are old enough to express their opinions. Their parents may have very different views on what is going on in the home. The father might say everything is fine. The kids are fine. And the divorce is not have much of an effect on them, while the mother may say the kids need therapy and are having a horrible time, and the other parent is not involved with them, has no idea what is going on now and never had any idea what was going on in the family. With their views so disparate, how are you going to know what the truth is and what is the best outcome for the children?

In divorce mediations like these, with the parents’ permission, I have met with and spoken to the children in an informal setting and asked them:

“What is going on? Let me know if there is something I can do to help. I will maintain your confidentiality; if there are multiple children I will not tell the parents who said what. I may change the words a little bit, just so they don’t know who it is coming from, but I want to express to them your feelings about what is going on and how it is making you feel. I want to try to give you a voice in this whole process. I want to give you the opportunity to express how you feel about the way your parents speak to each other, treat each other, and about how your parents getting divorced makes you feel.”

I then meet with the parents and read the notes of my conversation with the children to them. Often one parent will say they had no idea, which is usually followed by the other parent saying: “I told you so.”

Since children are part of the family and affected by the pending legal separation/divorce, it seems only fair that their opinions should be solicited and considered as part of the mediation process.

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com

• Abandonment
• Constructive Abandonment
• Inhumane Treatment
• Infidelity
• Imprisonment for three years or more
• Judicial decree (rarely used)

For years, mediation has been an alternative to a litigated divorce. In fact, in most states, mediation is court ordered by the judge before the couple can get divorced. However, New York is one of the few states that still doesn’t have court ordered mediation.

There are several forms of dispute resolution. The following is an explanation of some of the most common:.

Mediation

In mediation, a neutral party speaks to both spouses at the same to discuss the issues and assists them in coming to a resolution. In New York, this is a two step process. First, the couple will need a separation/settlement agreement and then will need to file a divorce action. The separation/settlement agreement addresses the parenting and financial issues for any children of the marriage, the division of assets of the marriage, and whether there are the factors present for maintenance (alimony).

Arbitration

An arbitrator is like a judge. The arbitrator makes a ruling and issues an award based on the believability of the witnesses that are produced, the strength of the documentary evidence, and how the case is presented.

Arbitration is not used in divorce proceeding but more often in the securities industry, intallment contracts and credit card agreement disputes.

Collaborative Divorce

In Collaborative Divorce each spouse hires an attorney to represent him or her. The attorneys sign an agreement that they will never litigate the case no matter how it turns out. Despite the fact that it does not go to litigation, this process can be lengthy and expensive; less than litigation but much more expensive than mediation. Most attorneys are not mediators and while they might say that the Collaborative process is a mediation like process, it really is not.

Collaborative Law Group

With a Collaborative Law Group, each of the spouses has an attorney representing them, a psychologist, a coach, and sometimes other professionals such as CPAs. Each side has a separate set of professionals paid for by the couple to help them through the divorce process. The process can be quite lengthy and expensive. While similar to the cost of litigation, the benefit seems to be that you don’t have to appear before a judge, but the expense and the number professionsals involved does not make this a viable alternative for most people.

While not a form of dispute resolution, it is a fact of life that there are some cases that need to be litigated in a court of law.

Litigation

In divorce proceedings, the couple appears before a judge and depending on how the judge rules, that is how the division of assets will go, child custody will go, how maintenance (alimony) will go, etc. You never know how a judge is going to decide, and that uncertainty is a problem. As good as the judges are and they’ve earned a lot of people’s respect, they have spent little time with the couple and don’t know them or their family, yet they are going to make important decisions about custody and division of assets, which will greatly affect their lives going forward. Judges rule as individuals so rulings can be quite different from judge to judge.

Because of the inconsistency in awards of maintenance, New York State is in the process of standardizing for how alimony is awarded. They are trying to create a set of guidelines so that people similarly situated, and going to courts through out New York State, will get similar alimony awards.

So what process should you choose? I can tell you from my experience as a mediator, my clients include lawyers and judges who are very familiar with how divorces are handled in court. I’ll let you draw your own conclusions, but what does it say when the divorce professionals often choose mediation?

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com

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.

Service Related Pension:

The first component of a Defined Benefit Pension and the one most people are familiar with, is what they call a “Service Related Pension”. What that means is after so many years of service, and upon reaching a certain age, you will receive a monthly distribution for the rest of your life, based on your election (choices) at the time you retire.

In city, state, and federal pensions the elections are many. For instance, you may choose:

• The Maximum Distribution

This election allows you to get the maximum that you can collect each month, however. it doesn’t protect your spouse when you die. When you choose the maximum distribution and you die, the pension dies with you.

• The 50% Joint and Survivor Option

In separation agreements where the spouse has a marital interest in the pension, the 50% Joint and Survivor election divides the pension giving both you and your spouse a share. The spouse’s interest is based on the length of the marriage. Contributions made before the marriage (pre-marital) are excluded.

• The Ten year or Five Year Certain

In some city, state, and federal pensions, you can elect a Ten Year or Five Year Certain, where the total amount of the pension is distributed over a 10 or 5 year period.

• The Pop-Up

The Pop-Up distributes a smaller monthly amount initially, however, in the event of your spouse’s death, the pensioner’s monthly amount will “pop-up” to the maximum distribution.  If you die, the spouse’s share doesn’t change.  The Pop-Up feature is not uncommon in city, state and federal pensions.

Annuity

Additionally, along with a Defined Benefit Pension there may be an Annuity and/or voluntary contribution plan (pre-tax) which can take various forms such as an ASF (Accumulated Savings Fund), or a TSP (Thrift Savings Plan) or a 401(K), 457 or 403B Plan whereby the employee contributes tax deferred monies into an account that builds up over the years.

Mediation and Divorce

During the mediation process, I will explain to you the different parts of the pension you have and how to determine its value. At that point a number of options are available to you and your spouse, such as:

• Trading the marital interest in the pension for another asset
• Each keeping their own pension
• Each may waive their interest in their spouse’s pension
• Offsetting the differences in pension values

 
 
The word pension sounds like a simple thing, but as you can see, it can be one of the most complicated parts of negotiating your settlement. But don’t worry, I’ll be there with the knowledge and experience to give you the information you need to help you make the best decision regarding your pension.
 
 

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY

Phone: (914) 588-6258
eMail: DonSinkov@gmail.com
Website: YourDivorceMediator.com