5 Myths About Divorce Mediation

November 1st, 2017

When spouses agree to divorce, it is a stressful and emotional time for the whole family. Litigating a divorce is time-consuming, expensive, and exhausting: as the cost and amount of time invested rises, typically so do the tensions and animosity between the spouses. Especially in cases involving minor children, a long contentious court battle can often cause irreparable damage to the relationships between the family members.

Increasingly, more families are looking for better ways to separate without the stress, animosity, cost, and time-commitment of litigation. One great option that has been steadily gaining in popularity over the years is the process of mediation. Divorce mediation is a type of alternative dispute resolution where a neutral third-party divorce mediator helps guide the parties towards a legally binding and enforceable divorce agreement that is fair and workable for both parties, rather than placing such important issues in the hands of an anonymous judge whose order may not best represent the interest of both parties. Divorce mediation is typically much faster than a traditional court proceeding: by avoiding potentially dozens of hours in the courtroom, couples can greatly reduce the cost of divorce as well as the stress of litigation, without sacrificing the enforceability of a legally binding agreement.

Despite its many benefits, some clients are hesitant to engage in divorce mediation because they do not understand exactly what divorce mediation is, what it accomplishes, and how it can spare the parties the emotional strain of an adversarial proceeding. This article debunks 5 common myths about divorce mediation to help you better understand how a New York divorce mediator can help you and your spouse reach a separation agreement that is best for your family.

Myth 1: You can get a divorce for $399

One of the biggest misconceptions about divorce mediation is that it is unnecessary because couples can get a divorce relatively easy with little cost. This myth is perpetuated by dubious advertisements that promise a fast divorce for a small fee: the idea that a divorce can be obtained simply for a small fee, such as $399, is not only false, it misrepresents the overall expense involved in an adversarial divorce proceeding and misleads consumers about the amount and quality of legal guidance they will receive in exchange for their hard-earned money.

Typically, when you see advertisements claiming that you can get a “quick and simple” divorce for $399 (or similar), there are a few important caveats that the ads fail to mention. First, you can’t obtain a divorce without the consent and signature of your spouse. Second, the advertised fee only pays for a non-lawyer to complete the paperwork for you: not only does the fee not include the services of a licensed attorney, the filing fees in many cases are the same or more than the advertised price of the divorce. Third, after payment of the fee, you are left to complete the filing of your paperwork, service of process, and court appearances on your own.

While a simple flat-rate for a divorce sounds like an affordable and convenient solution, unfortunately the services and help you receive after paying the fee is virtually non-existent. With an experienced and qualified New York divorce mediator, however, you can greatly reduce the cost of an average divorce proceeding without sacrificing the quality of services or being left to complete the majority of the work yourself.

Myth 2: Mediation doesn’t result in a legally binding agreement

Some clients may be hesitant to attempt mediation because they mistakenly think that only a court order issued by a judge is legally binding.

While mediation is not binding until the parties agree upon and sign a separation agreement, once the agreement is signed, the terms contained within are just as binding as if the case had been decided by a judge in court. Think of mediation as a series of discussions; each side may present terms and, with the help of a mediator, a compromise is agreed upon and entered into as an agreement by both parties. Just like a court order, if one party fails to fulfill the terms of the separation agreement there are legal consequences and actions you can take to enforce the agreement.

Myth 3: Your mediator will decide what is fair if you can’t agree

The role of the mediator is to help the parties communicate, maintain focus of the dialogue on productive and solution-oriented results, and guide the spouses towards an agreement that works best for the family as a whole. Your mediator is not a judge and, therefore, does not have the legal authority to decide the terms of your divorce for you.

One of the great benefits of mediation is that it allows the parties to retain control of the outcome, rather than having their fate decided for them by a judge. The parties are able to present their own terms and work together to reach an agreement that both can agree on.

Myth 4: Mediation is only for easy cases

Another common misconception about mediation is that it is only for simple cases. Mediation is a great tool for all types of divorce cases, regardless of the complexity of the issues involved. In fact, parties with complex cases benefit the most from mediation; by choosing to mediate the issues in dispute, the spouses avoid a lengthy and costly court case that can increase stress and contentions between the parties. Complex issues are also best solved by mediation because of the informality and flexibility of the process. Rather than having a judge decide terms that may disadvantage one spouse or even both spouses, in mediation the agreement is as good as the parties’ participation in the process and often prevents later disputes that can arise from court orders that are too one-sided.

Myth 5: You have to be amicable and agree on everything to mediate

Finally, mediation is not reserved for couples who agree on all the issues relating to their divorce. If the couple were able to agree on all the terms of their divorce, mediation wouldn’t be necessary!

Mediation is designed to help facilitate communication between the parties so that it is easier for them to come to an agreement. A good mediator will be able to listen to both spouse’s needs and concerns while helping to craft a separation agreement that represents the interests of both parties.

Divorce Mediation Professionals: helping New York families mediate for 30 years

At Divorce Mediation Professionals, we understand that divorce is a difficult and stressful time. Our team of experienced mediators can help your family avoid the expense and lengthy process of traditional court proceedings through mediation. To hear more about our services or to schedule your consultation at our Nassau county, Suffolk county, Westchester county, or Manhattan office, contact us today at info@divorcemediationpros.com.

Banish the Guilt

October 2nd, 2016

Regrets? You’re not alone

bigstock-guilt-123830990By Barbara Badolato, LCSW

The process of ending a marriage can bring up a range of feelings, including anger, frustration and even grief. One emotion that often catches us by surprise is guilt, and it’s the most unproductive and insidious of them all.

In addition to all of the regrets regarding the marriage itself, many of us feel remorse for the divorce’s impact on the children. We can feel guilty about some or all of these circumstances:

·      Breaking up the family

·      Causing the kids to change residences

·      Having less money to spend on vacations and other fun activities

·      Destroying the image of the “perfect family”

·      Hurting your spouse

·      Creating anxiety in the children

·      Withdrawing from friends and family as you cope through this difficult process

Although guilt is a perfectly normal reaction to ending a marriage, it’s one that many can get stuck on, and there’s frankly nowhere to go with it. Mistakes were made on both sides, but focusing on the past will only impede your ability to move on.

What’s needed is a shift in perspective.

Instead of focusing on what you and your children no longer have, try thinking about what you’ve gained:

·      Personal happiness

·      Peace in your home

·      A closer relationship with your children

·      A chance to redefine yourself and your life

·      Time to flex your independence muscles

·      The opportunity to demonstrate what a healthy relationship looks like

It’s normal to feel guilt. It’s a common emotion for many going through divorce and those guilt feelings should pass as you work through the divorce process. Sometimes, however, extreme or prolonged guilt can cause emotional problems such as anxiety or depression.  If you are experiencing feelings of hopelessness or if the activities of daily life are becoming too difficult to accomplish, I urge you to seek the help of a mental health professional.

You should not go through this difficult time alone.  You might find it helpful to join a support group or seek the help of a qualified therapist to help process the difficult feelings you might be struggling with.

Remember: Your marriage ended for a reason, likely for several reasons. With the right kind of help and with the passage of time, you and your children can thrive, and you all can be happy again.

Moving On

July 4th, 2016

12 Essential Steps to Prepare for Your Post-Divorce Future

By Jane Lubowitz Rosenstadt, Esq.

As many can attest, going through a divorce can be overwhelming. There is so much to be done in the process of ending a marriage, so much emotional energy spent, that by the time you reach the finish line of finalizing your separation or divorce, you may feel that you have little energy left to prepare for the next stages of your life.

However, with this major hurdle behind you, it is now essential that you take the practical steps necessary to put your financial and legal matters in order for the future. Among other things, accounts must be updated to reflect your new marital status; steps must be taken to ensure that you are in compliance with your obligations under the agreement; and named beneficiaries of your assets may need to be changed.

With these concerns in mind, we have prepared a checklist to guide you as you launch your new life.

1. Health Insurance: If during your marriage, you were covered under your ex-spouse’s medical insurance, and you have not already done so, it is essential that you take immediate steps to obtain insurance. You want to make sure there is no gap in your coverage once your divorce becomes final and you are no longer covered under your ex-spouse’s plan. Research your options to determine the most cost-effective insurance plan to meet your needs in the future, whether through your own employment, a private plan (visit New York’s health plan marketplace at https://nystateofhealth.ny.gov/) or through COBRA, as a temporary solution. Because divorce constitutes a “loss of coverage” situation, you need not await the annual open enrollment period to join a new plan. Rather, you can purchase a new health insurance policy right away.

2. Accounts and Credit Cards: If you haven’t already done so, establish checking, savings, brokerage and credit card accounts in your own name. If your agreement provides that joint accounts should be closed, take the steps necessary to do so. Be sure to cancel all joint credit card accounts.

3. Real Estate/Homeowner’s Insurance/Utilities: If title to your home was changed into your individual name by a deed, you will need to verify that the STAR property tax exemption is still in effect. If it is not, you must file for it again. Similarly, update your homeowner’s insurance policy and your utility contracts (gas, electric, cable, telephone, internet, cellphone) to reflect your sole ownership. Conversely, make sure that your name is removed from any policies or contracts on property for which you are no longer responsible.

4. Payment of Taxes: If you are receiving maintenance payments, you will be required to pay income taxes on the payments that you receive (unless your agreement specifically provides otherwise). Consult an accountant, who can set up quarterly estimated tax payments so that you will not be overwhelmed by a large tax debt at year end, and then make sure that you set aside enough money to cover those quarterly estimated payments.

5. Life Insurance: To the extent that your agreement requires you to maintain insurance on your life for another’s benefit, make sure that you have the appropriate policy or policies in place and that the named beneficiaries and the death benefit amounts are in compliance with the agreement. Conversely, if your spouse is required to maintain a life insurance policy for your benefit or that of your children, obtain a copy of said policy and request periodic statements to verify that the premiums are paid in full on an ongoing basis and that the policy remains in effect.

6. Change of Beneficiaries: Unless you are obligated under your agreement to maintain your ex-spouse as the beneficiary of the proceeds of certain assets upon your death, consider whether you wish to remove your ex-spouse and name another individual(s) as the beneficiary to receive the proceeds of any of your accounts, plans or policies (i.e. brokerage accounts, IRAs, 401(k)s, pensions, other retirement accounts etc.). If so, file the paperwork necessary to make such changes.

7. Last Will and Testament: In all likelihood, your ex-spouse was named in your will as a beneficiary to receive a part or all of your assets upon your death. In the event that you no longer intend your ex-spouse to be the beneficiary of such assets, contact an estate-planning attorney as soon as possible to assist you in revising your will.

8. QDROs (Qualified Domestic Relations Orders): If your agreement provides that you or your spouse shall share your pension or other retirement asset(s) with the other, creating the need for a qualified domestic relations order, or “QDRO”, be sure to follow up with your attorney, mediator, the court clerk and/or retirement plan administrator to verify that the order has in fact been filed with and executed by the court, and has then been filed with and approved (or “qualified”) by the administrator of the retirement plan. In the case of a 401(k) or other defined-benefit contribution plan, verify that the funds were in fact transferred into a new account in the name of the receiving party. In many cases, there will be forms that you or your spouse must complete and sign in order to receive the funds from the other party’s retirement account. Furthermore, it is your responsibility to inform the plan administrator in writing of any change to your address.

9. Automobiles: If your agreement provides that ownership of an automobile be transferred to or from your name, don’t delay in making the trip to the Department of Motor Vehicles to complete the paperwork necessary to bring about the transfer of title. In addition, cancel joint auto insurance policies and obtain your own policy.

10. Name Change: Divorce judgments in New York State contain language authorizing parties to resume use of a prior surname. If you wish to change your name following your divorce, you will need to present a certified copy of your judgment of divorce authorizing such change to the appropriate government agencies (e.g. Social Security Office; Department of Motor Vehicles; U.S. Dept. of State) and complete each agency’s required paperwork in order to assume use of the new name.

11. Information and Documents Pertaining to Your Children: Following your legal separation or divorce, be sure to update your children’s schools, doctors and medical insurers with any new contact information for either you or your ex-spouse so that you will continue to receive important information, notices and invoices. Obtain for your possession originals and/or copies of all important documents relating to your children, such as their birth certificates, Social Security cards and health insurance cards. Make certain that your children’s passports are maintained in a secure place either by you or your spouse.

12. Record-keeping: Set up a system for keeping track of expenses. If there are certain costs relating to your children that you share with your spouse under the terms of your agreement, such as out-of-pocket medical expenses, babysitters or tutors, keep records and/or receipts of your payments in a designated folder to enable you to do the accounting with your ex-spouse whenever necessary. When it comes time for you to file your taxes, be in a position to know how much maintenance you paid or received so that you have the correct information available for inclusion on your tax returns. Know whether you or your spouse has the right to claim a child as a dependent in any particular year.

By addressing head-on the matters on this checklist, as well as any other particulars that may apply to your situation, you will gain the peace of mind of knowing that you have protected yourself and your family, and you have complied with your obligations under your agreement.

The mediators at Divorce Mediation Professionals are available to help you, should you have any questions.

New Law Affects Divorcing Couples

May 28th, 2016

State sets spousal support guidelines

By Maren Cardillo, Esq.

Judges Gavel, Soundboard And Bundle Of Money On The Table
Early this year, the New York State Legislature enacted a law that provides guidelines for determining spousal support (or “maintenance,” as it is called in New York) in cases of divorce. Under these maintenance guidelines, calculations are made by applying mathematical formulas to the incomes of the two parties in order to arrive at the amount of support, if any, that is to be paid by one party to the other in a particular case. Generally speaking, maintenance is awarded if one spouse has significantly more income than the other.

In mediated or negotiated agreements, parties are not required to adhere to the maintenance guidelines so long as they can agree on their own upon the amount and duration of the payments. If they cannot agree and they go to court, a judge would then apply the guidelines to determine the amount of maintenance to be paid in their case.

Maintenance Amount

Depending upon whether or not child support will also be paid in a particular case, one of two maintenance formulas is applied to the parties’ incomes to arrive at the dollar amount of the maintenance award.

Formula Where the Maintenance Payor Is Also the Non-Custodial Parent Paying Child Support to the Recipient Spouse

First, make the following computation:
1. Calculate 20% if the Payor’s Income up to the cap
2. Calculate 25% of the Payee’s Income
3. Calculate Line 1 less Line 2

Second, make the following computation:
4. Add the Payor’s income up to the cap and the Payee’s income
5. Multiply the amount calculated in Line 4 by 40%
6. Subtract the Payee’s income from the amount calculated in Line 5
7. The Guideline amount is the lesser of Line 3 or Line 6

Formula Where No Child Support Is Being Paid By the Maintenance Payor to the Recipient Spouse

First, make the following computation:
1. Calculate 30% if the Payor’s Income up to the cap
2. Calculate 20% of the Payee’s Income
3. Calculate Line 1 less Line 2

Second, make the following computation:
4. Add the Payor’s income up to the cap and the Payee’s income
5. Multiply the amount calculated in Line 4 by 40%
6. Subtract the Payee’s income from the amount calculated in Line 5
7. The Guideline amount is the lesser of Line 3 or Line 6

As formulated, the maintenance guidelines are to be applied only to the first $178,000 of the payor’s income. Note, however, that although a court will award the amount of maintenance in accordance with the applicable formula, it will deviate from that award if it finds the amount generated by the formula to be “unjust or inappropriate” after consideration of the 15 “deviation factors” enumerated in the guidelines. In such circumstance, the court might then take into account income in excess of $178,000 which the payor earns in calculating the amount of maintenance. The court might also take into account other information in the case that the court considers relevant under the deviation factors.

Deviation Factors

1. The age and health of the parties;
2. the present or future earning capacity of the parties, including a history of limited participation in the workforce;
3. the need of one party to incur education or training expenses;
4. the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
5. the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
6. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
7. acts by one party against the other that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
8. the availability and cost of medical insurance for the parties;
9. the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
10. the tax consequences to each party;
11. the standard of living of the parties established during the marriage;
12. the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
13. the equitable distribution of marital property and the income or imputed income on the assets so distributed;
14. the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
15. any other factor which the court shall expressly find to be just and proper.

Maintenance Duration

Also contained in the new law are “advisory guidelines” pertaining to the duration of the maintenance award in a particular case; i.e. how long the payments shall continue. These guidelines are based upon the length of the marriage, which is defined as running from the marriage date to the date the divorce action was started.

Length of Marriage                 Award Duration
0 to 15 years                          15%-30% of the marriage’s length
More than 15 to 20 years        30%-40% of the marriage’s length
More than 20 Years                35%-50% of the marriage’s length

As this schedule is “advisory” only, it is within the court’s discretion either to consider or to disregard the lengths that are suggested. Moreover, under the new law, the court has the right to award what is termed “non-durational” maintenance; i.e. maintenance which continues indefinitely and which terminates only upon the remarriage of the recipient or the death of either of the parties.

Mediation and Role of the Maintenance Guidelines

While the new guidelines may give separating and divorcing couples a broad idea of what maintenance, if any, would be award by a judge should they go to court, couples who choose to mediate or negotiate their own agreements are not bound by these maintenance guidelines. This is fortunate, because each family and situation is unique, and often the maintenance guidelines do not provide appropriate or workable solutions for a particular family. In some cases, the support payments generated by the formulas fail to meet the financial needs of one spouse or the other. In some cases, the resulting amounts conflict with the values, goals and consideration that are important to the family.

As mediators, it is our responsibility to assist you in arriving at support figures that are workable for the two of you as individuals as well as for your family as a whole.

We have prepared a packet of information on the support guidelines and would be happy to share it with you. Simply call our office to receive your copy.

Seeing Isn’t Always Believing

March 12th, 2016

A shift in perspective can reveal the truth

By Barbara Badolato, LCSW

Family In ParkWhen we know someone very well, we often assume we also know the motives behind his or her actions.  This tendency to make assumptions about the cause of another’s behavior can be a roadblock to co-parenting.

Consider this story by an anonymous author.

A little girl was going for a walk in the park with her mother. Knowing she would get hungry after an afternoon on the swings, slides and in the sandbox, she placed two shiny red apples in a brown paper sack.

The pair went to the park, and the girl had a wonderful time. Before heading home, mother and daughter sat on a park bench to have their snacks.

The girl opened the sack and removed both apples. The mother said, “I’d like an apple, please.” The daughter looked up at her mother, smiled, and proceeded to take a bite of each one.

The mother was flabbergasted. Just as she was about to express her displeasure, the little girl offered one of the apples to her mother, saying, “Take this apple; it’s the sweeter one.”

This simple tale illustrates the notion that perception and perspective can color our ability to discern the truth about a situation. We often cannot know what another is thinking, no matter how well we might know someone.

Similarly, husbands and wives, operating from past hurts and experiences, might not know what the truth really is. For example, when the children are staying with Mother, their bedtime is 8 pm. When they stay with Father, however, their bedtime is 9. The mother may assume her ex-husband is purposely undermining her rules and her authority. In reality, the father may be telling his children that although they are permitted to go to bed later at his house, it is only because they don’t have to wake up for school the next morning. He also may warn them that they must not argue with Mother about their 8 pm bedtime, and if they do, their bedtime will become 8 pm at his house as well.

Human nature causes us to judge what one hears or sees according to how one feels in the moment. Since that judgment can be faulty, it’s always a good idea to ask for clarification whenever your former spouse does or says something that appears to contradict the co-parenting strategies you put in place.

In this way, you both can stay on the same page – remaining strong parents your children can rely on, even if you aren’t still married.