I recently got a response to one of my blog articles from a mediator who said, “Of course, I know all about this. I’m a mediator. I know about everything in divorce and everything related to people’s feelings. That’s who a mediator is.”
Early in my career, I co-mediated with an experienced attorney. We worked together for several years and thought we were doing a really good job. We had successfully mediated hundreds of divorces.
I still remember one couple that we worked with. The wife was absolutely beautiful; the husband was kind of an average-looking guy. We talked to them for a while and it was clear that they both wanted to get divorced. The wife started talking about how her life was all about the kids and how devoted she was to them. She also mentioned that the husband worked all the time and the reason the marriage was breaking up was all his fault. She was cleaning the house and being a good mom and trying to work with her business partner to build a business.
Recently a prospective client called and asked for some advice. She was wondering if her agreement needed to be modified. And could I help her? She had been divorced for several years and her ex-husband had recently passed away. She was wondering if she was still the beneficiary of his pension and therefore upon his passing, could she receive all of the survivor/spouse pension benefits? She spoke to someone in the HR Department at her ex-husband’s company, who told her that since her divorce she wasn’t the spouse any more and although she was once listed on the designation of beneficiary form as beneficiary, the company didn’t recognize that, because since the divorce, she was no longer a spouse.
I asked her if she had a copy of the divorce decree and what does the separation agreement say.
She said, “We didn’t write a separation agreement. We didn’t want to spend the money on mediating this or hiring an attorney to draft the agreement so we just did it ourselves.”
About a year ago, I mediated a divorce case with a high conflict couple. What was unusual about this case was they agreed to all financial terms before meeting with me. The difficulty was coordinating the process of getting an annulment, which sometimes we call a “Catholic Divorce.” Getting them to agree to meet with the priest for counseling, and then choosing a day and time to go through the annulment process took a couple of weeks of phone calling and emailing.
In the financial part of the Agreement:
- We had property transfers.
- We had businesses to sign off.
- We had bank accounts to settle.
We had lawyers commenting on their agreement, so I had to go back and forth with the lawyers, modifying the Agreement.
As I’ve said in some of my previous blogs, divorce mediation is turning into more of an art than a science. When I first started mediating divorcing couples, I thought I would just learn how to do it and then pretty much plug the information into a standard agreement and keep doing the same thing over and over again. Eleven years later, I realize that I couldn’t have been more wrong.
An example of this is dividing retirement plans. Way back when the stock market was fairly stable (and I’m assuming that at some point investors did consider it stable), a couple would divide the retirement plan value using the date of the signed Settlement Agreement. The market was not subject to the wild fluctuations that we see today, and we would actually put a fixed amount in the Agreement for the non-titled spouse.
Couples are often under the impression that when we write their divorce agreement, I just bring out a form, plug in their names and numbers and it’s done. Not true. The way we write agreements is constantly changing and the main reason for that is the current unstable economy.
Many of us are not earning the salaries we were earning in the heyday of the stock market prior to 2007. Things have changed dramatically, and some of my clients who were earning millions of dollars in previous years aren’t earning that amount anymore. In fact, some of them are earning substantially less, and others haven’t worked in 1-2 years or longer, because the high wage earning jobs they used to have are more difficult to come by.
So how do you calculate child and/or spousal support when one spouse is currently unemployed but has had a history of substantial earnings? Continue reading
Recently I received a call from a review attorney. My mediation client brought the attorney an Agreement we had produced. The attorney wrote out a list of comments and suggested changes. The client then brought the list back to mediation. At the mediation session, we discussed the likely effects of the changes and whether we wanted to implement them or not. When both the husband and wife go to review attorneys, both attorneys’ comments and suggested changes are discussed.
Unfortunately, often, that is not what happens.
I’m getting the sense that a lot of attorneys don’t know the difference between a mediator and a Jedi Knight. Continue reading
When a couple is in agreement about getting divorced, I often hear one spouse saying, “I don’t want to get legally separated, I just want to get a divorce. Why can’t we just skip the separation agreement and go immediately to divorce. We don’t need that middle step.”
Unfortunately, these couples don’t fully understand what the difference is between being legally separated and divorced. Living with a Separation Agreement and not filing for divorce may allow the spouse to be covered by most health insurance plans. Once you are divorced, you have to get your own health insurance.
When I meet with couples in mediation and one spouse has a medical practice, a law practice, an accounting practice, or a business that was created during the marriage, there may exist a marital interest. New York is one of the last states, if not the last state, to value a business license earned during the marriage as “enhanced earning capacity” which means it may be subject to division as marital property. When a couple comes to see me, I will discuss this further and give them an explanation of how it works. Is there a marital interest, and if so, how do they go about determining what that marital interest is?
This is not unlike pensions where there is also a marital interest. I ask that the pension be valued because pensions created during the marriage are marital property. I do get clients sometimes that have been to other mediators and some say they are hearing this for the first time.
“Look. I don’t want to go through a separation, I just want to get divorced. I know I have to wait a year. I want to get divorced as soon as possible.”
There is a lot of misinformation out there about the waiting period in New York, so let me try to clarify it. As of October 2010, there is no longer a one year waiting period. As far as getting divorced goes, you don’t have to wait a year to file the divorce action. Nor do you have to allege fault or blame your spouse for doing horrible things in order to get your divorce. You can now file under the 7th ground for divorce, “Irreconcilable Differences,” which people refer to as the “no fault” statute.