Divorce Mediation & Collaborative Divorce Articles

We hope you find our articles relevant and informative. If you have questions about divorce or any other family law matter, please contact Susan Lillis for a consultation or call (978) 356-2934 ext. 12.

What’s better, collaborative divorce or divorce mediation?

photo for blog on divorce mediation versus collaborative divorceAs an attorney who practices both collaborative divorce and mediation, it’s a question I’m often asked. To be honest, my answer really does not matter. The best choice between collaborative divorce or divorce mediation depends on the individuals going through the divorce, their honest appraisal of themselves and their situation and their comfort level. If you’re trying to determine whether collaborative divorce is right for you, start with a few questions.

Would you feel better going through the process with an attorney at your side both during negotiation sessions and immediately before and after those sessions?

Do you feel the negotiation would go better with the assistance of a divorce coach/facilitator? This is somebody who would meet with you and your spouse individually prior to the start of the negotiation to help you through the rough patches when things might get tense. This person is also instrumental in laying the foundation of the relationship you will have with your ex post-divorce.

And would you feel better having a team of neutral experts—financial, real estate, aforementioned divorce coach, etc.—there as a resource during the negotiations? Remember, these professionals are there with one sole objective—to make the sessions go as smoothly as possible and to help you and your spouse come to a resolution that can both live with.

If you answered yes to any or all of these questions, you should consider collaborative divorce as an option. Yet not every couple will have the same answer to these questions.

For example, you may feel that you and your spouse are pretty much on the same page and have a certain level of trust so that you don’t need an attorney at every session—perhaps just as a resource to consult prior and after sessions.

Financially, maybe you don’t have a complex assortment of assets. You and your spouse agree your marriage is over and believe you can work through an equitable split of assets without going back and forth with attorneys.

In terms of a divorce coach, you might feel might feel you and your spouse can communicate and get through this process without any major hiccups.

If that sounds like you and your spouse, divorce mediation might be the better option for you.
Of course, there are people who go through this series of questions and make a decision based on finances. Divorce mediation doesn’t have quite the same level of commitment with attorneys or the use of a team of specialists. Consequently, it’s a more affordable option.

Maybe.

That big maybe was to illustrate that selecting mediation when it is not right for you and your spouse might cost more in the long-term.

If you and your spouse reach an impasse during mediation you might find that your desire to stay out of court is derailed. The impasse can be as simple as you and your spouse not being able to agree on some key points like who stays in the family home, parenting arrangements, dividing inherited property, etc. Although these items might have seemed resolve-able at the outset, it could go the other direction if the parties engage in antagonistic communications outside of the mediation, one party makes unilateral decisions without consulting the other, or one or both of the parties loses his/her temper, breaking down communication even further. In the infrequent times where my mediations have not been successful, one or both of the parties has hired litigation counsel, not collaborative counsel.

This may seem like I’m steering towards collaborative divorce. No, far from it. The initial meeting I have with people involves two things: presenting options and then asking for an honest self-assessment. The type of divorce you choose should reflect your assessment.

You may think you could handle divorce mediation but prefer the support offered by collaborative divorce. That’s fine.

You may think you would prefer collaborative divorce but just don’t have the money or want to spend the money on attorneys and experts. That’s fine, too, but you need to realize that decision comes with risk.

You may not be able to reasonably and successfully negotiate with your spouse.

One reality you need to face is that it can be very difficult emotionally —and expensive–to go to court if you cannot reach a resolution. Making the right decision about the right type of divorce for you now—occasionally even the more expensive option—will save you time, money and emotional wear and tear in the future.

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What a collaborative divorce coach wants to know

In the past, you have heard me mention the benefits of having a divorce coach (also referred to as a facilitator) as part of your collaborative divorce team. People react differently to this recommendation. In my experience, however, the best outcomes in collaborative divorce happen with the benefit of a divorce coach. So, this blog will give you an outline of what a divorce coach will want to learn from each spouse and why this greatly aids the negotiation and lays the foundation of the relationship going forward.

Prior to negotiations, the divorce coach will meet with each spouse individually to both get to know each person and determine several things. Those include:

Goals:

What do you want to get out of the divorce proceedings? This is not a tangible question (e.g. 50 percent of all assets and sole ownership of the family home). It’s more theoretical. Some of the more common goals people have are being financially secure after the divorce; moving on emotionally; being able to be civil with the ex while attending children’s activities and life events; and communicating effectively with the ex so the children are not impacted. Often, both spouses have overlapping goals, which creates a positive platform to launch the negotiations.

Triggers:

It’s the nature of most marriages, good and bad. Even if you get along with your spouse, there are certain things that he or she does that just set you off and vice versa. To facilitate the negotiation, the divorce coach needs to know what those are. This serves many purposes. First, if the coach sees these triggers, he/she can alert the attorneys that a break might be in order. More importantly, the divorce coach can work with each spouse on how to react (or not react) to those triggers. This will be important during the negotiation and afterwards if you have to see and speak to each other regularly about parenting issues.

What led you here?

How did you and your spouse get to this point where you are seeking a divorce? Knowing each spouse’s version of their mutual history will be informative to the divorce coach during the course of the negotiation. It also will provide insight into the potential challenges down the road. An example of that could be the marriage is ending due to an affair/relationship. That would certainly impact the current communication dynamic and is bound to come into play in some predictable and sometimes some surprising ways in a negotiation. To the extent there are underlying anger issues, the coach will work to identify and defuse them as needed.

Where you are now?

One person could be fighting the divorce or not be very accepting. The other could have, emotionally and otherwise, moved on. Determining each person’s status can provide useful insights for the divorce coach in preventing any meltdowns or arguments. The coach might instruct the team to make accommodations for the spouse who is experiencing difficulties, such as scheduling more time between meetings or additional one on one time for the coach and spouse.

Family/Friend Dynamics:

Parents, siblings and friends mean well. That said, I’ve seen many cases where the influence of relatives /friends has negatively impacted the outcome of a negotiation. As an example, a spouse might agree to something in negotiation and then change his or her mind after the meeting because of the reaction of someone who is not part of the negation. If the coach is aware of the reason for the unexpected reversal he/she will work with the attorneys to develop a strategy for anticipating and hopefully avoiding the same pattern going forward.

A divorce coach is typically a seasoned counselor (such as a personal or life coach) or a mental health care professional with specialized training. He/she can help people focus on the negotiation, to not get distracted by the well-intentioned advice of others and keep the focus on the goals set at the beginning of the process.

Generally, the divorce coach offers insights about to divorcing parties that attorneys can’t. These insights improve the outcome of the collaborative divorce in two primary ways. First, they are invaluable in the actual negotiations, by making sure that the negotiations happen smoothly, making sure that everyone has the opportunity to have their say and responding or restructuring if the parties are not comfortable with the way that the process is unfolding.

The other significant benefit to having a coach is his or her attention to the emotional needs of the parties. Divorce is always an emotional event and a process that values and embraces the emotional currents (or undercurrents) rather than a process that tries to sweep those pesky emotions under the rug. leaving everyone feeling better heard and served.

Using a football analogy, as attorneys, we pay more attention to the X’s and O’s. In legal terms, that’s the division of assets, alimony, child support, parenting schedules, etc. The divorce coach is more like the trainer. He/she can see an injured player on the field, while other parties might be paying more attention to running the next play. And that’s why, in many cases, the divorce coach is the most valuable player in the room.

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Do you need a divorce attorney? What about half of one? Or less?

Photo by rawpixel on UnsplashGetting a divorce is traumatic enough. The cost of hiring and retaining a divorce attorney can add tension to what may already be a tense situation. Yet for some couples going through divorce, paying an attorney to handle every legal matter may be an unnecessary expense.

Yes, a lawyer just said you may not need an attorney for every aspect of your divorce. Now, before my brother and sister attorneys get too angry, let me qualify that statement by emphasizing “some couples” and “every aspect.”

In a divorce mediation, couples agree in principle to divorce and then work out the terms with the assistance of a mediator. The mediator is an attorney, but also a neutral party and cannot offer counsel to either party. It is possible to hire an attorney to attend some or all of the mediation sessions. Yet you do run into the issue of retainers and hourly rates and many divorcing couples are left wondering, “did I really need an attorney to do that?”

The answer for some clients is “no.” Many of my mediation clients choose to be responsible for the divorce negotiations themselves, rather than delegating those negotiations to their attorneys. Instead, they will consult their own attorney in between negotiating sessions or perhaps only at the end to review their agreement. This can be quite cost-effective in comparison to paying your attorney to participate in six or more hours of negotiation.

The Commonwealth of Massachusetts recognized the need for more predictable and affordable arrangements between attorneys and their clients. The Courts have created a Limited Assistance Representation (LAR) certification for attorneys. An attorney with this designation (I am one such attorney) can offer clients specific legal services at an agreed upon rate without being involved in (or responsible for) every aspect of the divorce.

You’re probably wondering how does this work? You could hire your attorney to do anything you do not feel comfortable with yourself. He/she could review the draft of divorce settlement prior to it being signed and finalized. He/ she could draft the divorce settlement if your mediator is not also an attorney. If your case is in court instead of mediation or collaborative divorce you could hire an attorney to write a motion for you to present to the judge or to attend the pretrial conference with you.

When you hire a LAR attorney, you will create a list of actions that you are responsible for and actions that your attorney is responsible for. As part of the process you will probably review the divorce process, discuss actions that would benefit from the input or presence of an attorney, clarify items you will need to take care of on your own and how to go about it and agree upon how your attorney will get paid for the services you want.

Use of a LAR is not strictly limited to divorce mediation. Many people use it for prenuptial agreements or post-nuptial agreements where the parties have already agreed upon the terms but need an attorney to write up the document. Limited Assistance Representation can also be used by individuals who are representing themselves in divorce litigation. This arrangement can vary to meet a client’s needs and desires.

Please don’t misunderstand the nature of this article. No two divorces are 100 percent alike and circumstances vary. Some divorces require the full-time legal services of an attorney. Some will not. Even if you are an attorney yourself, you should not make the decision to represent yourself without consulting an attorney. But if you and your spouse agree, in general, and money is a factor, hiring counsel for specific services instead of paying an open ended retainer based might be something to consider.

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Can you really take the emotion out of your divorce?

I read lots of blogs and articles written by attorneys on how to maximize your first meeting with your divorce attorney. It makes sense. We’ve been through first meetings with clients many times. We know our job is to help you focus on the items that need to be addressed to reach a resolution. That’s why most lawyers try to keep the initial meeting as business-like as possible for the sake of efficiency.

For example, the best use of your first meeting with your attorney is sharing information needed to fill out the required paperwork so we can begin negotiations toward a settlement. At a minimum, you should go to the initial meeting prepared with the following information:

• Family information – names and birth dates for yourself, your spouse, and your children;
• Date and place where you were married;
• Current employment information for you and your spouse.

An additional goal of the first meeting is to give your attorney an accurate understanding of your financial status. To that end, the more of following things you can bring to the first meeting the better. Those items should include:

• Income – Current pay-stubs for yourself and your spouse and last three years of tax returns;
• Expenses – An itemized list of your monthly expenses;
• Assets and Debts – Statements with balances for your mortgage, retirement accounts, brokerage accounts, bank accounts, and credit cards.

With this information in tow, you should also put some thought into your post-divorce life. In other words, what’s important to you? What type of lifestyle do you hope to live? Do you want to stay in the family home? Can you even afford to do so? Or do you want to buy a new home and are wondering if that’s feasible?

It’s always a good idea to write down any questions you might have before meeting with your attorney. Those can include anything and everything—child support, paying for college, music lessons, medical conditions or treatments, etc. Similarly, if you will be paying or receiving spousal support (AKA alimony) be prepared to ask those questions as well.

This is all good advice and there is nothing radical or controversial about these suggestions. That said, keeping things business-like may not be that easy. Most lawyers would prefer that you focus on the facts, not the intangibles. For starters, they prefer to keep the discussion of the details of your breakup brief. “Our marriage is ending due to…then fill in the blank with whatever the reason but is short words or phrases (e.g. infidelity; irreconcilable differences, etc.)

The reality, however, is that when we are dealing with the breakup of a marriage, the emotional component, even when reviewing finances, is always present. That is why I am always prepared to take the time to listen to my client and to try to understand the emotional underpinnings of the events leading up to the divorce. Yes, it can make the first (or subsequent) meetings less efficient from a business perspective. But, strong emotions can sabotage a negotiation as easily as a one-sided settlement proposal. So, my goal is to be in tune with my client’s emotional state.

It is also one of the reasons I so strongly advocate for collaborative divorce with a team of professionals that includes a neutral facilitator who monitors the emotional currents behind many divorce negotiations. The facilitator meets with both spouses individually at the start of the negotiations and is present during the team meetings.

He/she can work with spouses and, if necessary, their attorneys to address the emotional elements of this particular divorce. If there are things that one spouse does that presses the other’s buttons, the divorce coach can work with both parties on how to deal with that constructively. Or, during negotiations, the divorce coach can intervene if emotions start to get the better of one or both parties.

The first meeting with your attorney is both informational on one hand and a getting to know you on the other. It may be the most difficult meeting some people ever take. As such, it should come as no surprise that on occasion efficiency can take the back seat to emotions. So, prepare well for that first meeting.

Collect the information needed in advance and make an effort to focus on providing your attorney with the financial information s/he needs. At the same time, look for an attorney and a process that acknowledges that ending a marriage, no matter how long or mutually agreeable, is going to be an emotional process for the parties involved.

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Divorce and paying for college

photo of graduate by Muhammad RizwanDivorce not only changes your reality, but that of your children. This is especially true when it comes to your children’s choice of college and the issue of paying for it.

For families that can afford or have saved enough money for their children’s college, this is a non-issue. The number of people who have done this, however, are few and far between. Most divorcing couples find themselves in a situation where paying for college takes some finesse and having some difficult conversations long before you would have had you remained married.

It needs to be pointed out that as a married couple, there’s no legal obligation to pay for your children’s college education–married parents could, and sometimes do, decide to pay nothing. In a divorce, however, it is standard practice to reach an agreement on some level of contribution to the children’s college expense.

One common agreement is to split the college expenses equally between parents. Another is to split the college expenses on a pro rata basis with the parties’ earned income.  A third favored approach is for each parent and child to contribute the same amount resulting in a third, a third and a third formula.  With the rising costs of a college education, however, these simple solutions may just be too expensive.  Recently, I have seen judges saying that neither parent can afford to contribute to college.

Of course, the goal of divorce mediation and collaborative divorce is to agree on an arrangement without giving all the power over to the courts. Your children may not even be in high school but the negotiation and discussion surrounding college payments can start with “where do we think he/she might want to go to school?” and “where can we afford to send them to school?”.

As example, let’s say a divorcing couple has two children, 13 and 11. Part of the discussion could be about whether or not the children are likely to have to grades to go to college, what kind of college could they get into, how to pay, etc. Let’s say the 13-year-old is a straight A student; while the 11-year-old is an average student. Part of the discussion could be do you want to treat the children differently or do you want to treat both equally?  Recently, I have seen clients agree to pay for a more expensive private college for the higher achieving student and directing the less academic child towards state schools or community colleges.

Part of the collaborative divorce process is working with a team of neutral experts. The finance experts will evaluate your finances and assets and set the table for a discussion of what you and your ex can afford to pay for college based on current data. Using our example, the financial expert can give you an idea of what it would take for each child or both to go to state college or private college. That factoring could include the amount of aid a child can get on his/her own (e.g. Stafford Loan) without a parent’s signature. So, you could factor a scenario of a 50-50 split or a three-way split between parents and the child.

Part of the unfairness of divorce for children is that many times these discussions are taking place at an age where your children are still developing, still figuring themselves out. The 11-year-old could be the next Albert Einstein. Yet an initial choice of college has been determined for him/her. Granted, many things could change between now and the time the child goes to school (e.g. one or both parents remarry; one or both parents could be earning more, etc.). The fact that parents agree on their respective percentage contributions will probably be less significant than whether the percentage applies to private college, state college or community college.  The collaborative divorce process tries to present a realistic scenario based on current conditions so that parents and children can prepare.

With the rising cost of a college education, many parents and children are wondering if going to college is worth the cost and the years of student loans. It’s not uncommon for parents to disagree on this topic and for one ex to be less than enthusiastic in paying for college. For the first time, the 2017 Massachusetts’ Child Support Guidelines set a maximum cap of how much a judge can order a parent to contribute to their child’s college education after a divorce. The cap is defined as 50 percent of the undergraduate, in-state resident costs at the University of Massachusetts-Amherst unless the judge specifically determines that a parent has the ability to pay a higher amount. It is likely that both parents will be thinking about this cap when negotiating the contributions to future college expenses.

Of course, there are many layers to the college discussion. One of the most important is managing the expectations of your child. He/she might have their sights set on that expensive private school. One or both parents need to have the frank discussion that money might not be available to them from either or both parents to do so. Your child needs to know that he or she will need to take out loans and apply for scholarships, work part-time during the school year and full-time during summer and during college to make their dream school happen.

Married or divorced, we want what’s best for our children. As a parent, many times you can deliver that. When it comes to college, particularly after a divorce, you might not be able to. Just as the team of financial experts lays out your future financial scenario, you must do something similar with your children. Maybe they will be okay with that. Maybe it will be the inspiration to do even better in school to push the envelope and see if their dream school is a possibility.

The reality of divorce affects everyone involved. By having all the cards on the table early on, you can manage expectations and work from there.

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The 5 most common divorce mistakes

Photo by Mari Helin-Tuominen on UnsplashGoing through a divorce is not pleasant. People who work with divorcing couples understand that and try to mitigate the unpleasantness for their clients as much as possible. It’s natural for a client to want the negotiation to be over and done as quickly as possible. Unfortunately, the desire for the end of the process can cause a husband or a wife to make some mistakes; mistakes that can’t be easily fixed later.

One area where hasty, short-term thinking often occurs is around parenting schedules. I have seen cases where one parent wants sole custody and the other parent wants joint custody. Putting aside the merits of either of these positions, it is quite likely that whatever the parties ultimately agree upon will be their custodial arrangement until the children are emancipated. In other words, don’t make a compromise because you are in a hurry to get divorced with the idea that you will change it later. If a few years into the agreement one parent would like to change the schedule, it won’t be easy to do unless their ex is willing. Regrettably, many of these types of conflicts end up before a judge who is not likely to change a parenting plan absent a clear emergency.

Future finances are another area where divorcing couples can also be a little short-sighted, particularly as it pertains to how much income they will have to live on after the divorce is final. One common example occurs when one spouse wants to keep the family home yet really doesn’t have the income to sustain living there. In a collaborative divorce, we have a team of neutral experts, including a financial planner. The planner will run a cash-flow analysis for each party to demonstrate how much income each person will have going forward. While this certainly helps people make better decisions, it doesn’t preclude them from unwise choices.

For example, let’s go back to the spouse who wants to stay in the family home. Perhaps the cash-flow analysis indicates enough income to remain in the family home, but just barely. A year into the divorce, the house needs a new roof or some other maintenance. Or, perhaps the spouse is out of work for a period of time. While staying in the family home might be desirable, being house-poor with no financial wiggle-room can lead to problems down the road.

Another financial mistake some divorcing spouses make is having an emotional attachment to particular marital assets, such as stock or real estate. One spouse may want to keep stock that they earned from their employer for emotional reasons or because they think it is going to increase in value. Another spouse may want to keep the family second home thinking it would be worth much more in a few years. If the stock value drops or the home falls into disrepair what started out looking like an equal division of marital assets might end up favoring the other spouse. Since the division of assets in a divorce is final there will be no way to correct the imbalance down the road.

College tuition payments and retirement are also areas where couples may agree too quickly without fully thinking things through. For example, a couple may agree to each pay half of the cost of college without crunching any numbers or thought as to how or what that would do to his/her overall savings plan and retirement. Once the child is in high school and visiting colleges, it’s a little too late in the game to initiate a change to that agreement.

People using collaborative divorce as the method to negotiate a divorce settlement have the advantage of a neutral team of experts. I’ve seen it time and again where these experts can put a financial forecast in front of divorcing couples so they have a pretty good idea of what things will be like—at least financially—post-divorce. It truly saddens me to see couples rush to a settlement before fully taking advantage of the team’s capabilities.

A divorce is like having surgery. Your best chance for full recovery lies in the hours just after the procedure. If you stay off your feet and follow doctor’s orders, the swelling will be minimal and in a few days, you can start your recovery program. Similarly, your best shot at your best life after divorce lies in those hours spent negotiating a settlement. Rush to your feet before you have your full recovery program in place and you will suffer setbacks that will delay any number of things that you want to do with the rest of your life.

If you made the move to go with collaborative divorce, you owe it to yourself to use the process to craft the best post-divorce life you can. It’s time spent in the short-term that will be well worth it long-term.

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3 don’ts for your divorce

photo of courtroomPeople turn to divorce attorneys for guidance on reaching a divorce settlement. In more than 30 years in practice–whether for collaborative divorce, divorce mediation or litigation–the advice I offer often deals with what NOT to do. The top three in the what NOT to do while negotiating a divorce settlement includes:

Dating during the negotiation:

This may be the least heeded advice offered. Anecdotally speaking, I’d say that with at least 50 percent of the couples we work with that there is at least one person who has begun dating. This is not unlawful and does not legally impact the negotiation. It can, and often does, emotionally impact your spouse and this can and does impact the tenor of the negotiations. And that can add to the stress level of the negotiation and, potentially, the amount of time it takes to come to an agreement.

People are human. While it may not be in the best interest of the negotiation to date, it does happen. If you are dating, proceed with caution and heed the following advice:

Be discreet – Going to places where people you know might be seen you with your new love interest is probably not a good idea. Be selective in where you go. While the actions of two consenting adults should be your own business, if word gets back to your spouse and you think it could be upsetting, behave with that in mind.

Social media – Do not post photos of you and your new love interest on social media. As logical as this might seem, people still do this and word gets back to the spouse. Make sure to alert your new love interest of this as well. The same goes for sharing photos by text. You just never know in whose hands these things might end up.

No contact with the children – Divorce is confusing for everybody involved. Even more so for the children. You may be happier now that you are with somebody new. That doesn’t mean your children will be as well. And you can rest assured if you introduce your new s.o., it will get back to your ex. Take it from somebody who has worked with divorcing couples for a very long time—just don’t do it.

Be impatient

Collaborative divorce and divorce mediation can and usually does proceed faster than litigation, which can take between 18 months to several years. Yet expecting your divorce negotiation to conclude within two or three months is completely unrealistic. You can safely presume your collaborative divorce or divorce mediation will probably take between six months and a year.

I’ve had clients who entered the negotiation with a certain deadline in mind. When that deadline approached, he and his spouse grew frustrated and opted out of collaborative divorce for litigation. I recall running into that same individual a year later at the courthouse and the divorce still had not concluded.

Your divorce is like a recovery from surgery. Your best chance at the best result depends on the path you set in the early stages and staying the course. Impatience can and often does lead to setbacks, which only delays the end result.

Make unilateral decisions

This piece of advice mostly concerns couples with children, though it also has relevance to people who own property together. Simply put, don’t make any big decisions without your spouse’s knowledge.

If you’re the custodial parent, don’t change the children’s school, doctors, daycare, etc. without consulting your spouse.  Also, important decisions like putting your children in counseling should be done as a joint effort with your spouse.

Some other obvious-but-not-always-to-some things you should not do without consulting your spouse include: selling the family home; making large capital improvements (e.g. bathroom remodel); or make any large purchases (e.g. buying a jet ski, new furniture, etc.). These types of purchases and decisions have a bearing on financial statements and can certainly make for frostier negotiations.

No matter what your method divorce—collaborative divorce, divorce mediation or litigation–reaching a divorce agreement is never easy or simple and requires the focus of both parties. While these three things might seem like common sense, you would be amazed how often it can occur—with almost always negative repercussions.

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Who gets the cat?

Divorce mediation and collaborative divorce offer a flexibility you don’t find in litigation. It’s designed that way so that both sides can negotiate, compromise and resolve issues to reach a settlement. The structure of both formats and the willingness of both parties to compromise typically cuts a path to resolution. Until you run into an issue that creates a roadblock. One common one is custody of the family pet.

Of course, there are other issues that can create a stalemate: The family home or a vacation home. An inheritance. A jointly owned businesses or investment. It could really be anything that a couple just can’t seem to come to a consensus on—even with the resources available as part of either divorce mediation or collaborative divorce.

So short of applying Solomon’s wisdom and cutting the family cat in two, how do we resolve issues where both parties can’t compromise?

First, we resolve the negotiation points that can be resolved first. If we know there’s a contentious issue, we set it aside and address things that the couple can come to an agreement on. This keeps the process moving forward. Just as importantly, it helps the couple acclimate to the negotiating process.

Acclimate to the negotiating process? What does that mean? Negotiating is about give and take. As an individual, you know what you really want but probably can’t get, you know what you would be willing to settle for, and then there’s the category slightly below that of what you can live with. As part of the negotiation, couples are constantly going through the process of conceding points here and there to get through the process and reach a livable settlement. Reaching a consensus on the easier issues first builds trust and an understanding of how negotiations work so by the time you reach the difficult issue, couples are better able to come to an agreement.

Unfortunately, roadblock issues—like who gets the family pet or what a marital asset is worth– can remain a roadblock issue even after going through the process. That’s when we provide a few other options to come to a resolution.

An arbiter provides one solution. An arbiter is a neutral party like a retired judge or an attorney working outside the courtroom. He/she will hear arguments from both parties and then come up with a decision. In choosing this path, both spouses agree to accept the decision of the arbiter in advance, which is binding. It is like having a mini trial on only one issue without jeopardizing the compromises that the parties have already made.

A neutral appraiser can provide another solution. When the dispute involves money—e.g. one spouse thinks an asset to worth more than the other—we can hire an appraiser to conduct a valuation. Typically, this is done with real estate or a business where one ex wants to be bought out. Based on the neutral valuation, we can return to the negotiating table with something more concrete than simply what one party thinks their share is worth. If the party who is getting bought out is still afraid that the asset will be sold after the divorce for an amount greater than the valuation, we can build in language for an additional payment if this actually occurs.

Another option involves hiring a third-party conciliator. Like the arbiter, he/she will talk to both parties but not together. Instead, the conciliator will shuttle back and forth between each of the parties. This can work because each of the parties may be willing to share their thoughts and feelings with the conciliator when they might not be willing to share those thoughts with their spouse. Using the information obtained in the separate conversations, the third-party conciliator may be able to facilitate a resolution that both parties sign off on.

In terms of the family pet, it’s a little more complicated because it’s not really a dividable asset. And there are many laws against even suggesting splitting the pet in two to see which person would be more upset. Generally, the hope is through the application of some creative negotiations or the use of a neutral third party, the couple can agree on an ownership/visitation agreement.

Thankfully, these issues do not come up in every divorce. But couples entering into divorce mediation or collaborative divorce do have the assurance that all their issues can and will be resolved even if it means finding creative dispute resolution options.

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The new tax law and divorce

How will the new tax reform law impact divorce? While most of the focus has been on the lowering of the tax rate for corporations, the new law will also have a significant impact on divorces as of January 1, 2019. The most notable of those changes concerns alimony.

Previously, spouses paying alimony could declare those payments as a deduction. Conversely, spouses receiving alimony had to declare it as income. The new law takes both of those things away and that will influence how some divorce settlements are negotiated, particularly collaborative divorces and mediation.

In litigation, child support and alimony follow a formula without any room for negotiation. One of the many things that make collaborative divorce and divorce mediation an attractive option is that there can be some flexibility with alimony.

For example, let’s say a spouse is paying child support and alimony. Perhaps under the previous set of rules, the alimony payment pushed the ex receiving the alimony into a higher tax bracket. So, even though he/she was receiving the alimony payment, it was costing him/her money. As part of the negotiation, we could increase the child support payments, which are not considered income, so that the spouse would remain in the same tax bracket.

This is but one example. It’s also not uncommon for a spouse to actually want to pay MORE alimony to take advantage of the deduction. Alas, as of January 1, 2019, that option will not exist.  Alimony will remain deductible/income for divorces finalized prior to January 1, 2019.

What are some of the other impacts of the new tax reform law? There will certainly be an impact on owners of corporations going through a divorce as the tax rate has been dramatically reduced. Similarly, the small business owner who filed as a sole proprietor now may opt to become an LLC or incorporate to take advantage of the new law and that may have to be factored into a divorce.

With many divorcing couples with children, the custodial parent will often desire to stay in the family home to mitigate the emotional impact of the divorce on the children. With the new tax law, the deduction allowed on state and local income taxes, and property taxes is now capped at $10,000.  This might make staying in the family home less feasible financially for the custodial parent.

There are any number of other scenarios where the new law could have an impact on divorce settlements. The flexibility provided by divorce mediation and collaborative divorce is still a great benefit to divorcing couples as everyone tries to get their arms around the new law.

The new tax law shines a light on something that’s long been true of divorce mediation and collaborative divorce: the use of professionals. Specifically, I’m talking about CPAs and financial planners.

In litigation, divorcing parties will hire their own attorneys and retain the services of an accountant or financial planner to review assets. As an expense-saving move, many divorcing couples will opt not to bring in one of these financial professionals. That cost-saving move can be extremely costly if you’re not fully aware of all your finances or financially savvy.

A CPA and/or a financial planner is typically part of the team of professionals involved in a collaborative divorce–with the cost split by both parties. In divorce mediation, it’s not uncommon for divorcing couples to do the same, again while splitting the fees. With the new tax law being so new to all of us—CPAs included—it simply makes sense to have a financial professional in your corner during your divorce. That’s why if you and your spouse can agree on a less adversarial approach, divorce mediation or collaborative divorce makes more sense than ever.

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Post-divorce mediation

A marriage may end legally. If children are involved, the marriage continues in many ways long after the divorce is final.

Issues will arise. You and your ex may not agree on an issue or be able to come up with a compromise on your own. If you effectively ended your marriage through mediation, it can also be an effective means of resolving parenting and other issues that arise down the road.

As much as possible, a divorce settlement tries to provide as much permanency to as many issues as possible. The division of financial assets is a good example. When the marriage ends that issue is typically put to bed. The same is not true when children are involved. There are many issues that can arise post-divorce. Most have to do with parenting schedules.

In coming up with a parenting schedule, some couples decide to leave many things open—who goes where on holidays, summer vacations, extra-curricular activities, etc. While you may think you want that flexibility and you can work things as out as you go, the reality can end up being quite different.

For example, one spouse might be able to play more of a role with transportation to and from extracurricular activities in the first year after the divorce. But perhaps after a while, he/she meets and marries somebody else. Suddenly the logistical arrangements include another person.  The old arrangements might have to change.

Holidays are another area where after a year or two of one schedule it might be time to reassess.  Children get older and may want more input.  This can be even further complicated when you or your ex remarries (e.g. your new spouse wants to see his/her parents during the holidays but you it’s your year to be at home and have Christmas with your children).

Other things will also come up during your children’s lives that will require alterations to the parenting schedule. Maybe your child will need psychological counseling or special tutoring. Perhaps your child wants to attend a private school. There are any number of changes with your children that would necessitate revisiting this part of your divorce agreement.

In addition to the parenting schedule there are other issues that might be disputed after a divorce.  For example, if a divorcing couple agrees to not sell the family home for a period of time to let the children adjust, there are many potential areas of disagreement while both parties jointly own the home and when they finally decide to sell. For example:

  • The custodial parent might want to make some cosmetic repairs to the house but the ex disagrees or does not want to pay for those repairs.
  • The ex not living in the house has remarried and wants to buy his/her own home and needs the cash from the sale of the previous home.
  • The parties have different opinions about what the house should sell for.

Again, these are a few of many scenarios that could occur.

Appearing before a judge in court takes away the control of the outcome from you and your ex. You will each make an argument and then the judge will rule. One of you will be unhappy at the end of the day and that can have negative overtones which can impact the children.

Mediation for post-divorce situations like the above put the control of your destiny in the hands of you and your ex. With a mediator, you can negotiate an agreement between you and your ex that will best reflect the wishes of you and your ex. Will it be exactly what you want? No, but when you walk into court to present the agreement to the judge, there will be no surprises and the decision will be on the terms of you and your ex, not the judge.

When couples divorce through mediation, it hopefully sets up a pattern of communication that helps them develop the skills to resolve conflict going forward. As with many situations in life, there are some issues where it can be difficult for two people to come to an agreement. For times like this, a third-party, like a mediator, can be a huge benefit—much like it was in coming to your divorce agreement.

By utilizing mediation for post-divorce disputes, you can hopefully prevent resolvable issues from festering and jeopardizing a working relationship with your ex. A working relationship between parents with an open line of communications will always benefit your children.

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