It’s impossible for anyone to predict the future with complete accuracy, as the world we live in is often a very unpredictable place. However, we can look back at the
My previous blog post discussed the complexities that we saw in mediation throughout 2018. Many aspects of mediation are likely to stay the same going forward, while other elements are bound to change. For instance, mediation will always be a helpful alternative dispute resolution option for couples who would prefer to avoid things like court-room trials and litigation. Additionally, as we move into 2019 at least, it seems that the grounds for divorces done with divorce mediators or otherwise will remain the same too. As I mentioned in my last blog, all the couples I have worked with during divorce mediation have chosen the no-fault divorce law for their procedure, since the No-Fault law was passed in 2010, while other grounds do remain available. The no-fault solution simply means that it is neither side’s fault, it’s simply the marriage that is irretrievably broken. Fault doesn’t need to be admitted or proven for the divorce to go ahead.
What I Expect from Divorce Mediation in 2019
As mentioned above, the predictions given here are only my best guess, but I believe that parenting time and custody considerations are likely to also remain the same in the year ahead. Discussions on custody and parenting time are often very common with your divorce mediator. Things like the best interests of the children, and how a child should be raised will continue to be crucial as we move into the years ahead. Additionally, for the beginning of the year, the legislature in New York has not yet around the change the guidelines for maintenance and child support to keep up with the fact that the United States Congress’s new tax law that says maintenance (aka alimony) payments will no longer be a tax deduction for the person who pay it and will no longer be taxable income to the recipient. This law goes into effect for maintenance payments for agreements made and cases decided January 1, 2019 and afterwards. It seems that the guidelines for these awards will remain the same, but some people would argue that the maintenance guidelines, which were made when maintenance payments were a tax deduction for one side and income for the other side, may not make as much sense anymore.
Going in to 2019, maintenance payments will not be viewed as a tax-deductible expense for the payor, nor will they be seen as taxable income for the recipient. The current maintenance guidelines were last revised, at the time I am writing this blog, in June 2015. In practice throughout the courts of New York, the guidelines have led to calculations that were far more fair than the previous requirements for pendente lite calculations (while a divorce is pending). The guidelines given in the 2010 no-fault divorce law revisions led to some discomfort among both law practitioners and those in their divorce cases. Many judges and practitioners alike believed that the application of the full guidelines was both unmanageable and harsh for the payor, which led to many deviations from the guidelines.
Mediation Offers Benefits Going Forward
One of the best features of divorce mediation, both now and in the years to come, is that it provides parties with the freedom to focus on decisions that make sense to their needs. In a mediation session, there’s no need to employ specific guidelines for things like spousal maintenance and support. Instead, we can look at things like the needs of everyone involved, and the budgets that each spouse has to deal with. The idea is to ensure that both households can continue survive in a fair environment going forward. After all, a transition from one household into two is never easy. Ultimately, however, a judge needs to sign off on the agreements made with divorce mediators. Accordingly, mediated divorce agreements may deviate from the guidelines, however, proper reasons for doing so must be spelled out. That is why I believe it is appropriate to say that divorce mediations operate under the shadow of the law.
Of course, as a divorce mediator, there are times when I will use the guidelines in mediation as a starting point to discuss issues of child support an. In 2019, and the years going forward, after rules around tax have transformed, the reasons to deviate from guidelines may be more important than ever. In child support guidelines, the following considerations are likely to come into play during decisions:
- Tax consequences of the parties
- Financial resources of the non-custodial and custodial parent
- Other factors deemed relevant by the judge
In the maintenance statute the tax consequences and any other factor deemed appropriate by the court are proper considerations in deciding maintenance issues and deviations as well.
It might be possible to make the case that the new tax consequences associated with maintenance payments in 2019 will also need to be considered in equitable distribution. After all, tax consequences and other factors “deemed relevant” by the courts are often considered during equitable distribution agreements as permitted by the statute for equitable distribution.
If you’re concerned about divorce mediation in 2019, or you’re interested in booking a mediation appointment to start your divorce process, contact my office today. You’ll be able to book a free initial consultation, for you and your spouse, for up to 30 minutes to find out whether mediation is right for you. Contact us on (516) 333-6555.