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.

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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A way to get closure out of your divorce

Many people go through the divorce process and instead of gaining a sense of closure, they harbor bitterness and resentment. For some, the bitterness never goes away. Now, that could stem from the circumstances of the break-up and certainly every case is different. Yet the type of divorce you choose—-litigation, mediation or collaborative—can be a contributor or a healer, and that should be something you consider.

It’s easy to see how bitterness could happen with the litigation process. You meet with an attorney. You fill out some paperwork, provide your financials and share your story from your own perspective. Your spouse does the same. Typically, any conversations going on during this period are conducted between the attorneys who are one hundred percent in their client’s camp with little or no interest in the other party’s perspective.

Your day in court finally comes. You are standing in front of the judge and next to your attorney. He or she is saying wonderful things about you and not so wonderful things about your spouse. And you may be fine with that until you hear from your spouse’s attorney. He/she is doing the same thing: saying things about you that you don’t agree with or find uncomplimentary at best and downright insulting at worst. During this process, you and your spouse say very little or nothing at all. Then, the judge makes his/her ruling based largely on pre-existing formulas. The disparaging remarks are left hanging and unresolved.

With collaborative divorce, it’s an entirely different process. Your voice and participation are mandatory. The process requires you to meet regularly with your spouse and team and to have an actual dialogue–and, more importantly, to listen. You actually have a civil discussion about the things that divide you. Then you try to find a resolution that factors in both of your concerns. This is where your closure begins.

Now, many couples, even ones that agree about most things in the dissolution of the marriage, have difficulty in communicating. That’s why many collaborative divorce teams include a divorce coach.

The divorce coach is trained to help the parties express themselves in both truthful and respectful ways. He/she will talk to you to get a sense of how you and your spouse communicate. Often, the divorce coach is interested in trigger points for you and your spouse. You know, the things he/she does that set you off. By identifying these things, the two of you can develop a strategy on the best way for you to react if you hit a trigger point. The divorce coach will work with your spouse in a similar fashion.

Finally, the entire goal of a collaborative team (the attorneys, the parties and the coach) is to find a resolution that everyone can live with. This changes the tone of the discussion. The divorce coach will be in the room and keeping the conversation/negotiation productive. Part of his/her job is to monitor the discussion and to gauge the emotions of both you and your spouse to see if anybody is losing their composure. By simply recognizing the triggers, identifying communications designed to get a reaction, and sometimes calling for a short break, the divorce coach can help keep a meeting from deteriorating. You would be amazed how a discussion with the divorce coach can get you or your spouse through the rough patch and the meeting back on track.

By going through the collaborative divorce process, many couples lay the foundation of how they will communicate with each other going forward. In many cases, couples learn to communicate far better as exes than they did as a married couple.

At the end of a collaborative divorce negotiation, you will have had ample opportunity to be heard. Metaphorically speaking, you will have had your day in court and the words and feelings will come directly from you, not your attorney.

Does that mean anybody who goes through a collaborative divorce has no resentment or bitterness? No. In a lot of divorces, there’s typically one person who didn’t want it. Collaborative divorce won’t change that. But there’s just something about laying all your cards on the table and making your feelings known that minimizes feelings of resentment. You walk away with that sense of closure you might not have had otherwise.

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Divorce mediation without the divorce

There’s a misconception that a couple must be divorcing to engage in mediation. In an age where second and third marriages are commonplace, it’s not unusual for couples to enter into mediation to sort out an agreement prior to marriage (Prenuptial Agreement), when marriage is not in the plans (Cohabitation Agreement) or when the parties are trying to save a troubled marriage (Marital Agreement).

Today, I would like to talk about mediation of a Cohabitation Agreement.

Cohabitation Agreements are particularly popular with older couples who have decided for a variety of reasons to live together without getting married. These couples often have children, homes, any number of financial assets and many responsibilities and commitments (e.g. care for elderly parents). Because no marriage is contemplated, many of them want to clarify the ground rules while they are living together and who will get what if one of them dies or becomes incapacitated after they move in together.

This type of agreement can take on many shapes and forms. Perhaps the couple buys a home together. The mediation could state that, in the event of death, the house remains available to the survivor until his or her death. At that time, the property can be sold with proceeds being distributed to the heirs of both parties as dictated in the mediation and estate plans.

Now, the above example might sound like a reasonable course of action for an unmarried older couple. Yet a child of one of the couple might feel entitled to a share of the house after his/her parent’s death rather than waiting for the death of the survivor. And, in fact, without a specific agreement to the contrary, they might be entitled to just that.

While this is but one example, there are numerous other issues that could be included in a mediation of this type. It could cover healthcare issues, elder care issues and more.

Disposition of assets purchased by an unmarried couple is another area where clearly stated language in a Cohabitation Agreement could head off conflict between heirs and one member of the couple after the death of the other.

Another scenario could be if one of the couple has a relative, child or parent who requires assistance—financial, medical or some other kind. The Cohabitation Agreement might include language about how that person’s expenses will be paid both during the cohabitation and in the event of the death of the caretaker. For example, the agreement could state there are funds segregated for the dependent. Conversely, there could be language where the survivor spouse does take on that responsibility. It really depends on the couple and the situation.

Part of the reason couples choose divorce mediation is to have control over the terms of the final Divorce Agreement. The same is true of mediation prior to cohabitation.

Older couples choosing to enter into a serious relationship the second, third time—even more—have the wisdom of previous experience. They hope that their family members and heirs are happy for their new situation, but have a decent idea of who is not or who might not be. They enter their new life with the realization they want to minimize the problems between their own family members and their new partner in the future. One of the best ways to do this is to put their objectives and intentions in a legally binding written document.

In last month’s blog, I talked about how I was proud of my clients for the growth they demonstrate from the first meeting to the end of the negotiation. I can honestly say the mediation for a Cohabitation Agreement, for all intents and purposes a lifetime commitment, is also a memorable part of my job.

It’s touching that a couple cares enough about each other to want to leave the other in a good place after one of them is gone even if they are not married. It makes a similar statement to children, grandchildren and other relations. By taking care of the decision-making at the beginning, the relationship can really be about the couple and their remaining years together.

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Mediation attorney: I’m proud of my clients

photo of mediation attorney with clientsThat’s not a sentiment mediation attorneys will commonly express and I can’t say it’s true with every case. Yet there are some cases where couples go from barely being in the same room with their ex to proactively negotiating and compromising to reach an agreement that puts their children first. It’s difficult not to feel some level of pride if you played even a small part in that evolution.

How does a transformation in two people occur during a divorce negotiation? It varies but at some point, one or both parties make a dramatic realization:

Yes, I’m angry and disappointed with my spouse for how things have gone with our marriage. I don’t want to be here and I want this to be over with. My current attitude is not getting us closer to an agreement. It’s definitely not helping our children. How can I make this better?

Many couples go into a divorce negotiation knowing exactly what they DON’T want. This can be based on previous experience or seeing others they know go through a bad divorce. You know the pact you make that you will never be that couple. Until you become that couple. Many divorcing couples have that watershed moment during the process and it changes everything.

Most couples will start a mediation with the best of intentions. While both parties may not have wanted the divorce, each realizes it’s the direction they are going. So, they agree to negotiate in good faith. Then we start to delve into the specifics of the divorce and it gets real. Things like:

  • Who stays in the family home? Or do we have to sell the family home?
  • Where do the kids go for holidays? Does that mean just the holiday itself? What about the night before?
  • What about summer vacations? Who goes where and when? Does it stay the same every year?
  • What about extracurricular activities? Who pays for what? What about transportation to and from those?

It’s a long list and the new reality is a lot of details need to be worked out. Where the growth and maturity comes in is when one of the spouses makes a concession that helps the other out. For example:

A divorcing couple has two children, both have an activity on Wednesday afternoons in different parts of town. The custodial parent can’t pick up both children without one of the kids having to wait for a long period of time. Doing so would require him/her to leave work early, something that’s frowned upon at his/her place of work. The ex volunteers to pick up one of the kids after that activity so his/her ex doesn’t have to leave work early. The ex agrees to do this for up to one year or until other arrangements are made.

Another example might a spouse wanting to stay in the family home even though he or she cannot afford to buy their ex out. This is not an unusual request for the custodial parent to make to lessen the impact on the children during this time of adjustment. The ex, wanting to minimize the impact on the kids, would like to work something out but needs the money from the sale of the house to get on with his/her life and find a place to live.

A solution for the above scenario is not always obvious. But it requires two people committed to compromise and flexibility to trade ideas and work something out because it will be best for the children.

I think what makes me feel most proud about these types of situations, aside from couples getting along well enough to talk, is their realization that they need each other. That sentiment goes beyond reaching an agreement. It’s a realization that they need each other to continue to co-parent their children for now and the foreseeable future. And that’s a powerful thing.

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