Long Island Family Law and Mediation Blog
Here’s Part 2 of my divorce mediation bullet points from my blogs over they years. This one contains my next ten 
points –
30 – The parents can make agreements about which parent can claim the children or if the children will be shared or alternated as dependents for their tax returns. As a divorce mediator I always advise that I am not a tax professional and recommend that the parties consult with their tax advisor for tax advice and tax consequences regarding their divorce and settlement agreements.
31 – The law in New York regarding equitable distribution of marital assets and marital debt is to distribute these things as is fair. In mediation the couple can decide if dividing these things equally is fair or some other arrangement. In litigation, on the other hand, the court decides how this is done and usually invokes certain default thinking such as things should be equally divided.
32 – In mediation, agreements about the marital residence can be discussed and agreed upon. The knee jerk reaction of a matrimonial judge that has to decide issues on the marital residence tends to be something like, “If the two of you cannot agree on the house then I am just going to order it sold!” Divorce mediators can help the couple discuss arrangement where one side stays in the house for some time, or one buys the other out of their share among other possibilities.
33 – If a court has to decide the issue of spousal maintenance, they will refer to the guidelines that exist in the law based on the incomes of each spouse and the length of the marriage. Afterwards the court may entertain arguments from the lawyers about deviations from the guidelines. Mediation, on the other hand, provides a safe place in which couples can address their monthly financial obligations, as well as their resources, budgets, and potential money coming in, in order to decide about payments out to or from the other side of the table. of either side.
- Most mediators, like me, will give each side an equal opportunity to speak about each topic. Usually if one person had the opportunity to speak first on any particular subject, after everyone was fully heard on that subject, I will give the other side the opportunity to speak first about the next topic. There do not have to be hard and fast rules in mediation, though, so if one side is comfortable letting the other lead the conversation, and the other spouse does not have a problem with that either, that will work just fine.
- If we run into conflicting points as a team, we can consider caucusing. What is caucusing and why is it so important? Caucusing is speaking with each side individually to come up with results and solutions.
- If we run into stumbling points involving the finances of how to transition from a married family to living apart, we can look to help outside of the parties and the mediator. Financial neutrals can be employed to be a part of the mediation team in order to focus on the needs of each side as we discuss transitioning from one household to two.
- Although couples are free to make agreements in mediation, the agreement made will still need ultimately need to be approved by the court. Experienced lawyers, that are also mediators, like me, know the proper reasons courts need to consider deviating from the guidelines on things like maintenance and child support. A properly drafted mediated agreement which was made in light of the appropriate factors considered, in most instances is approved by the courts.
- Agreements regarding children need to be in the Best Interests of the Children. So, ultimately, while couples usually can decide what they want together for their children regarding child support and custody and parenting time, the court always retains discretion whether to approve it or not. This means that ultimately, even though a couple agrees on certain specifics for support and parenting time, that the court could in theory reject the agreement for the children if it is not in the children’s best interests in the eyes of the court. Here again, it is important to consider appropriate factors in making the agreement and to have an experienced matrimonial and family law lawyer (or your mediator that is also an attorney) carefully craft the language of the settlement agreement.
- A mediated child support agreement is not strictly about how much money one parent will pay to the other. Other topics are: what health insurance will be in place for the children; how child care expenses will be allocated between the parents; the allocation of unreimbursed medical expenses; life insurance coverage for the parents; college expenses might be discussed and whether or not private school is applicable all can be included topics.
- Unmarried parents can mediate child support as well. However, to get a binding court order my office can draft an agreement and give couples instructions on how to petition the family court to sign off on their agreement to make a court order. We even potentially can draft the petition for them (but not sign it ourselves because as a neutral mediator I would not appear in court as the lawyer for either side.)
- In divorce mediation my name can appear on the papers as “attorney for the plaintiff” when we already have a signed agreement and there are no remaining issues of contention between the parties. I am still neutral for couple but the way the system works for a lawyer to shepherd the agreement through the court system to obtain a Judgment of Divorce, I have to list myself as attorney for one of the parties. My agreement with the mediating couples provides that if an issue of contention arose that we were not able to mediate out of that I would have to be removed as “Attorney for the Plaintiff” and the parties would need to obtain their own independent lawyers. While this in theory could happen, I have not yet had it happen in one of my mediations.
Stay tuned for the next part of this series of bullet points regarding divorce mediation from my blogs over the years …