Long Island Family Law and Mediation Blog
This blog is a continuation of my bullet point series on divorce mediation that summarizes my past mediation blogs –
Maintenance, also know as alimony, can be discussed with your divorce mediator. How much money, if any, and for how long one spouse should pay the other maintenance needs to be discussed. Some couples each feel that they are capable of making enough money to be able to support themselves. In those cases, waivers of maintenance by each spouse is possible. Other times there is a feeling that one side of the relationship needs money over a period of time in order to be able to get back on their feet. If there is not an agreement about maintenance couples can be reminded that there are guidelines in the law, based on income, and the length of the marriage for how much and how long maintenance presumably should last. But they are just guidelines. Sometimes, if the couple wants to hear about the guidelines it might be a useful discussion to have regarding the topic of maintenance. In mediation, though, we are not bound to the statutory guidelines. The focus of the conversation could be about budgets and how much each side of the table needs in order to transition into their new lives and meet their monthly expenses.
Likewise, if there are minor children (under 21 for child support purposes), the payment of child support needs to be discussed. This topic too can center around budgets and how is everyone going to meet their monthly expenses and take care of the children. While couples are not bound by the statutory guidelines for child support, every agreement in child support, even if it deviates from the guideline amount of child support, must spell out what the statutory guidelines are in order for the agreement to be binding. Therefore, when I draft the settlement agreement the child support section will spell out the guideline amount of child support. Sometimes we might discuss the guideline numbers in the mediation sessions, but the parties will definitively know the guideline numbers before the agreement is signed. We can discuss and spell out legally recognized reasons for deviating from the guidelines in our mediations and mediated agreements.
Different professionals, besides your divorce mediator, can be utilized in divorce mediation to help facilitate an agreement that makes sense for both sides. For example, at times we might want to add a child specialist, financial planner, or accountant to the mediation session for certain particular issues. Most of the times when I mediate with couples it is only myself as the neutral mediator and the couple in each session, however, in one of my sessions we brought a psychologist in on the mediation to get past some tricky issues involving the child.
In divorce mediation various options regarding the marital home can be discussed. Different options include selling the home and dividing the net proceeds. Often one spouse will buy the other out of the residence. Different options regarding the timing of the real estate transaction can be made such as delaying the sale of the residence and making appropriate adjustments for paying down the equity of the house pending the sale or reduced or increased payments for support if one spouse is paying the carrying charges of the residence. Courts tend to have more pat solutions regarding the house, like selling it, whereas in mediation the freedom to explore creative solutions is more readily accessible.
If happiness cannot be obtained in a relationship, going through a divorce may be a necessary step in order to continue on a person’s right path. Divorce mediation is usually the most cost efficient, expeditious and least contentious process. The less money involved, the quicker the speed and the least animosity there is in the divorce process the greater the likelihood of satisfaction with the experience and ability to move on to the next steps on one’s life’s journey. Mediation can be the most reasonably priced, expeditious, and least contentious process to get divorced. Mediation then might be the most sensible way to continue on one’s path to happiness if it cannot be found within a relationship. This decision though needs to come from within each person and perhaps with the help of trained mental health professionals like therapists.
Equitable distribution of retirement assets is one of the topics that needs to be addressed in divorce mediation. Sometimes a couple would prefer to trade off assets of similar values rather than say dividing up their pensions. For example, an agreement might provide that one person keeps the house and leaves the IRA account to the other spouse. However, some couples just want to divide the marital portions of all assets, including pensions, IRAs, 401ks and other accounts equally. This can be done as well. Pre and post retirement death benefits, valuation dates and the timing of transfers are all among the details that can and should be discussed in divorce mediation when addressing retirement assets. Although divorce mediation can be flexible, your experienced divorce mediators should be thorough in handling all the details involved. Ultimately the settlement agreement and divorce papers need to be properly drafted to reflect the agreement arrived at in the mediation. Drafting, review attorneys, or your attorney that is a divorce mediator, like me, would ultimately be tasked to ensure that the agreement is properly drafted.
Divorce mediators should introduce the topic of equitable distribution of marital debt with the divorcing couple. Like marital assets, marital debt falls under the topic of equitable distribution. Equitable distribution sounds like equal but it means what is fair. In mediation the couple decides what is fair. It might be that the debt is shared equally. It might include that certain debts will remain the obligation of the spouse whose name is on it, like for credit cards. All different options are possible and can be explored in divorce mediation. In court a judge will decide what is fair for equitable distribution. This decision, however, will only be made by a judge after a full trial at the end of a litigation. It can take a year or sometimes years before that actually happens.
Stay tuned for another blog about divorce mediation bullet points. It looks like there will be one or two more articles encompassing my mediation blogs from over the years.