marriage

Post image for Has New York’s No-Fault Provision Increased the Divorce Rate?

The NY Post recently reported that since the new no-fault divorce provision took effect, divorce filings in New York State have increased 12%. Some people are pointing to this as an indication that no-fault laws make people more inclined to divorce. This isn’t necessarily true.

An important factor in the fluctuations in divorce filings may be the economy. Many divorces were put on hold when the recession hit. As confidence in the economy began to improve, those who waited to get divorced for financial reasons finally felt they were ready to file. A University of Oklahoma study conducted back in 1998 also found that a state’s no-fault laws impacted the rate of divorce filings.  However, the study went on to show that in those no-fault states where the rates of divorce had increased, the increases were significantly linked to gains in family income, showing that as a family has more money to spend, separation and divorce becomes more possible.

Where To Point the Finger?

I believe, as the Oklahoma study points out, a variety of factors come into play when a couple decides to postpone or give the green light to filing for divorce.  I’ve spoken to numerous couples who stated, for example, that given the New York City real estate market, they couldn’t afford to divorce and sell their property so had to wait until the market turned around.  Others say that they simply can’t afford the cost of childcare and two New York City apartments, so they’ll tough it out until rental rates drop or their incomes increase so as to permit one of them to move out. And many couples chose to stay married, although separated, simply so that one spouse can maintain healthcare coverage under the other’s company family health plan.

Just prior to the very recent economic shakeup in Washington, Americans were sensing a mild improvement in the economy and confidence in the market was improving.  Some suspect that couples were beginning to feel financially safe enough to make the move towards separation or divorce.  Coincidentally, the recent changes to the New York Domestic Relations Law passed in October 2010 law providing for no-fault divorce also make divorce more accessible and more affordable for many couples. By allowing couples to choose no-fault or ‘irreconcilable differences’ as the grounds for their divorce, there’s no longer any need to debate or prove grounds such as adultery, abuse or abandonment, which used to consume a significant portion of a lawyers’ time. Any divorce attorney will tell you that he or she spent hours prior to this change in the law wading through the various options for grounds for divorce, passing the tissues as they extracted the information from the clients, trying to construct a well-organized complaint that would be legally sufficient. If the issue went to trial to prove the grounds for divorce, it was extremely costly. Couples who found divorce too expensive in the past now have an option that is a little more streamlined and budget-friendly.

The recent change to the New York statute providing for legal fees has also made it more possible for spouses of lesser means to take the initiative to file a petition.  Under the new law, the spouse making substantially more money may be required to shoulder the cost, or a portion of the cost, of the divorce.  The intention is to make sure that the lesser earning spouse does not stay trapped in a bad marriage just because he or she can’t afford to file for divorce, and to ensure that both parties have access to competent legal counsel or mediation.

There are always a multitude of reasons why a couple decides to divorce and it’s unlikely a change in the law actually encourages people to go out and get a divorce if it wasn’t something they were already considering.

What’s your take on the recent increases in the divorce rate?

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Divorce Mediation and the Gen X Family

by Petra Maxwell on July 20, 2011

Post image for Divorce Mediation and the Gen X Family

 

A  recent Wall Street Journal piece focused on Gen Xers (born between 1965 and 1980) and divorce.  As the author points out, this is the generation defined by divorce: nearly half of Gen Xers grew up in split households, and roughly 40% were latch-key kids. It’s no wonder, then, that  Gen Xers, now married with their own families, are more determined than ever to get it right.

Learning From the Past, in Marriage and Divorce

Contrary to popular belief, children of divorced households aren’t necessarily headed for a failed marriage themselves.  The article points out that, for the first time in over two decades, the divorce rate has dipped.  Recent census data shows that the early wave of Gen Xers married in the early 1990’s have stayed married past the 10-year mark.  Gen Xers are loathe to put their kids through what they themselves have endured as neglected children, shuttled from household to household. But divorce still happens.  Gen Xers, like their parents, lead complicated, dual career lives that present multiple challenges when trying to navigate around the competing demands of jobs and kids. When the marriage breaks down, the Gen X couple, who themselves suffered the pain and emptiness of divorce, is again determined to “get it right”.

For Gen Xers, Mediation Makes for Better Co-Parenting

This generation that has a laser focus on its own children is very attuned to the effect of divorce on kids because they themselves lived through it.  More and more, Gen Xers are turning to mediation to negotiate their separation and divorce to help reduce the negative impact of the transition on their kids. That’s good news for the children since a University of Virginia study has shown that divorce mediation does what mediators have long been saying it does – it fosters better communication between the parents, allowing them to stay actively engaged in their kids’ lives as parents co-parents.  (Also read our previous article, Divorce Mediation Makes Better Parents).

Create A Parenting Plan!

If you’re a Gen Xer (and even if you’re not), you want mediation to help you lay the groundwork for cooperative co-parenting, so that you can continue to give your kids a grounded and balanced childhood, even if they have two homes. We are experienced at working with parents who lead complex lives – professional moms and dads with multiple kids and complicated parenting arrangements – and we understand your interest in making sure that your children go on to lead healthy, secure and balanced lives with continued access and support from both parents, despite your break-up.  Contact us for information on how we can help you create (or revise) a co-parenting plan that will help you ‘get it right’ so you can remain actively involved parents for your kids.

 

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Post image for The “New” NY Divorce Law:  What it is and how it impacts your decision to mediate

Late last fall, New York became the last state in the nation to offer something akin to ‘no-fault’ divorce. After years and years of debate, a few new provisions were added to the NY State Domestic Relations Statute that impacts the grounds by which you can get a divorce, the payment of fees to get a divorce, and the provision of maintenance (or alimony) for the lesser earning spouse while the divorce is being negotiated.   I am asked all the time about what the new law entails, whether it’ll make getting a divorce in New York easier or more complicated for couples, and what it means for a NY mediated divorce.

First, let me give you a quick and dirty summary of how the law has changed since the new provisions went into effect last October:

1.  Grounds for Divorce – Before October 2010, a spouse who wanted to divorce was required to prove that the other spouse had committed a serious marital transgression such as adultery, cruel and inhuman treatment, imprisonment or abandonment.  At best, couples could agree to legally separate for a minimum of a year and, thereafter convert their separation agreement to a petition for divorce after the full year was up.  But as of last October 2010, couples were given another option.  Under the new law a spouse need only show that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.”  When the divorce petition is filed in court the couple will be asked to file an affidavit stating that the marriage has broken down irretrievably for a least 6 months and that there is no possibility of reconciliation.  However, in order for the court to approve the petition, all other outstanding matters such as child custody, child support and distribution of property and maintenance, must first be resolved by the parties before the court will approve the petition and the marriage can be dissolved.

2.  Fees for Divorce – Last fall, Gov. Patterson also signed another bill favored by no-fault divorce advocates which may require the payment of counsel and experts’ fees to the “non-monied” party in a divorce action.  NY State law has always attempted to balance the playing field by forcing a higher earning spouse to pick up the tab or pay a portion of the divorce costs for the under earning spouse.  However, these costs could not be recovered until the divorce was finally settled in court.  Now, under the new law, those who earn less are permitted to recover their costs, or a portion of their costs, while they incur them, throughout the course of the divorce process.

3. Temporary Maintenance While Divorce is Pending – Finally, the Statute includes a provision for a more formulaic approach to the award of temporary maintenance payments to non-monied spouses as their divorce proceedings are pending and move toward finality.  As in all cases of maintenance, however, several factors are still taken into consideration by the courts when determining whether maintenance is appropriate.  For example, the length of the marriage, the education and earning capacity of the parties, professional sacrifices made by the non-earning spouse, what each was doing prior to the marriage, whether the couple has children and their ages and abilities, are all factors that the court will still consider when determining whether maintenance is appropriate.  There is never a hard and fast rule when granting an award of maintenance and a request can be denied altogether by the court despite the adoption of the formula.

So, let’s say you’re thinking about mediation.  How do the new NY Divorce rules stack up when you’re thinking about a mediated divorce?  Actually, I think you always do better in mediation – whether you have a complex case or not – for several reasons.  First, as you noticed, NY courts will not consider your petition for divorce unless they find that all other relevant matters such as child custody and support, property division and maintenance (if applicable), have been resolved.  In mediation, you will be asked to work together with your mediator on each of these issues, one by one.  Mediators are trained to help you brainstorm and resolve complex and challenging disputes around custody and parenting arrangements, property splits, pension plan and banking account assessments, real estate moves, and maintenance.  When all is said and done, your Lawyer/Mediator can draft a legally acceptable Stipulation of Settlement for you that will outline for the court all of the terms you’ve agreed to.  This will show the court that everything has been resolved; that you’ve dotted all the i’s and crossed all the t’s and are ready for divorce.

What if you’re earning less and need financial help while the divorce is underway? Again, my bias is for mediation.  First, mediation is a much faster process – and more cost effective too.  Both parties save time and money while participating in mediation then when hiring separate attorneys to litigate their divorce.  I have found that because of the significant cost savings, higher earning spouses are sometimes more willing to help in ways that they might not have considered because they no longer feel that they’re being “taken to the cleaners” by a “vindictive” spouse.  Further, a good mediator will draw out their clients’ top concerns very early on.  If temporary maintenance or help with mediation fees is foremost on your mind and is causing you stress, then your mediator should help you both review your finances, your household budgets and help you create an Interim Agreement that outlines how one can help the other manage until a more permanent solution is worked out.

If you have more questions about the new rules for divorce in New York, or how mediation can work for you – please give us call.  We’ll be happy to help point you in the right direction or match you with a screened and qualified mediator that fits your needs.

 

 

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Post image for Mythbusting Mediation: The Top 10 Common Misperceptions About Mediation

 

Although, more and more, mediation is becoming the preferred way for people to settle their disputes, there are still a lot of misperceptions about it.  Here are the top 10 fears and common concerns that I hear regularly from people that prevent them from taking the wise approach to conflict resolution.

1. Mediation only works if you already agree about most things. The whole point of mediation is to solve problems you don’t agree about. The process helps you find compromises and common ground when before you didn’t believe you had any. Just think of mediation as an alternative to going to court, except that the process is private, less expensive, faster, and you maintain more control over the outcome.  You don’t need to agree on the issues.  You just need to agree to mediate.  From there, each of you will work with your mediator to negotiate and problem-solve in order to develop solutions to your unique set of problems.

2. The mediator makes all the decisions. The mediator is actually there as a neutral third party to move the process along. He or she doesn’t decide anything at all and has no power to do so. Only the people sitting in mediation can make decisions about their situation.  The mediator may help by guiding you in your thinking, offering suggestions, and may point out options to assist you in brain-storming solutions.  But, ultimately, you are in the driver’s seat when it comes to developing solutions that work best for each of you.

3. Mediation is too time-consuming. Mediation almost always takes far less time than a contested court proceeding, when you consider all the hours your attorney must put in to prepare for court. Also, because mediators charge less than trial attorneys, you save money.

4. Mediation is touchy-feely. Mediation is not therapy. To resolve certain difficult issues it can be helpful to talk about the emotions or reasons behind them, but the goal in mediation is not to talk through your problems as you might in therapy. Instead, the goal is to tackle problems until you find a solution that works for everyone.  From there, your mediator will help you draft an agreement that will be enforceable in court.

5. Mediation is not for people with a lot of assets or complicated businesses. Mediation works in almost every situation. As long as parties are willing to sit down together to meet and discuss their conflict, mediation is possible.  Mediators have been used to resolve conflicts in business partnership cases, employment and contract disputes, separation and divorce cases, family conflicts, eldercare matters, landlord-tenant and real estate cases, and a host of other types of cases.  The value or type of assets is unimportant. The same process is used to resolve them. Mediators are trained to work with any type of asset.

6. People who mediate don’t use lawyers. Most mediators strongly suggest that both parties hire an attorney for consultation during the process. The mediator’s role is not to provide legal advice (although legal information is given). Each person may wish to consult with an attorney to discuss strategy, rights, and what the potential outcome would be in court.

7. If there’s a power imbalance in the relationship to begin with, the weaker party won’t be protected in mediation. This concern comes up frequently and is expressed most commonly by women going through a divorce, or employees in conflict with their employers.  The belief is that, without an aggressive attorney by their sides, they won’t feel they can have a voice in mediation.  In fact, mediators are trained to insure that everyone is given an equal opportunity to speak freely and openly during mediation and that everyone is heard.  Mediators often act as ‘interpreters’ for parties to be sure that their messages are being conveyed clearly to the other side. In this way, the process can move forward and everyone’s interests are represented in the final agreement.

8. A mediated agreement is not legally enforceable. The mediation process is not only accepted by the courts, it is now highly favored and encouraged by the court system and any agreement reached by the parties is considered binding and enforceable.  When the parties create an agreement with the help of their mediator, it will be drafted in a legally acceptable form, signed and notarized.  In the case of a divorce, for example, the divorce Stipulation of Settlement Agreement, will be submitted to the court with the divorce petition and attached to the court order.  Once this happens, the agreement reached by the parties will be binding and enforceable.

9. Women are always at a disadvantage in mediation, particularly if the mediator is male. Mediation is blind to gender. The process is not skewed in any way to give either spouse better chances. A good mediator will ensure that both parties have a voice and an opportunity to speak and negotiate. The mediator’s gender is irrelevant because the mediator acts completely neutrally.

10. Mediation doesn’t work unless you have good communication with the other person. Most people are in conflict with one another because they don’t have good communication, so this is definitely not a requirement for mediation. It’s even possible to mediate without ever sitting in the same room or speaking directly to each other.  At Mediationline, for example, we have successfully mediated cases where the parties have not been in the same location and have chosen to conduct their mediation over email and through separate exchanges with a mediator. No matter what the style of communication, mediators are skilled at drawing out shy and withdrawn parties, diffusing tense situations, and bringing balance and equity between the parties so that everyone has a voice in the process.


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Post image for Getting the Most Out of Your Mediation: Do the Homework!

When you sign up for mediation, you might not expect to be given homework.  But homework is an essential part of most effective divorce, custody, or senior care mediations.

What Kind of Homework Should You Expect

Mediators often ask clients to take the time between sessions to think about the issues still to be decided and to generate possible solutions. Your mediator will usually prompt you to try to think about the topic in a way you never have before. For example, if you’re mediating a custody dispute your mediator might suggest you pretend to be your child and come up with solutions he or she might think of. Your mediator may also ask you to gather information from different sources, such as appraisals from real estate brokers or account information from investment advisors. In a senior care mediation, your mediator might suggest you make some phone calls and talk with some visiting nurses, elder care managers, or assisted living facilities. You may also be asked to do some organizational work—gathering records and documents and organizing them or creating a summary that can then be used in the next mediation session.

Why You Should Do Your Homework

If your mediator asks you to think about some issues, generate possible solutions, or gather records between mediation sessions it’s usually so that when you meet again everyone will have made some progress. Homework saves you time (and money) in mediation. Going home and spending some time thinking about the issues and possible solutions lets your mind slowly work through things in a way you cannot in a one-hour session. In the days or weeks between your sessions, you have time to let your active and subconscious mind process everything that was discussed in session and internalize it. This moves you closer to a solution. Gathering information or documents allows you to bring something new to the next session so there are more items to discuss.

How to Get the Most Out of Your Homework

If you approach your homework as something you just need to check off your list, you aren’t getting the complete benefit of it. This isn’t like math homework in high school where you just needed to scribble some answers down on paper to show the teacher you did something. Homework is intended to benefit you. You aren’t doing it for your mediator. You’re doing it for yourself. You committed to mediation and you want it to help you reach an equitable resolution. The only way to do that is to devote time and energy to the process—which means taking the homework seriously.  As you gather your information, think about how it can benefit the settlement process.  Begin to think about creative ways for how you might be able to give and take as a way to reach a fair agreement.

Mediation homework is an integral part of the process and giving it the time and attention it needs will help move your mediation case along more quickly and get you to a mutually agreeable solution as fast as possible.

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Divorce Insurance?? Let’s Do the Math….

by Petra Maxwell on November 4, 2010

Post image for Divorce Insurance?? Let’s Do the Math….

A company called WedLock now offers divorce insurance. That’s right, divorce insurance. If you divorce after a thirty-six month waiting period, the policy pays you a benefit, meant to cover the cost of your divorce.  What’s next, a divorce app?

Let’s look at the cost of this new concept.  A policy is not cheap. Every $1250 of coverage costs $16 per month. The average litigated divorce costs upwards of $30,000. A $30,000 benefit would run you $384 a month – and is probably close to what you pay for your car payment. Is it even cost effective? At a yearly rate of $4608, eight years of marriage (the median point length of marriages that experience divorce) this $30,000 benefit will actually cost you $36,864 in premiums. More than a divorce itself and much, much more than a mediated divorce would cost.

Money concerns aside, is divorce insurance any different than a prenup? To some couples it might be. A prenup is something you do once, while thinking, “we’ll never need this, but just in case….” Divorce insurance is something you have to pay every month and keep in force, so it keeps the possibility of divorce as an active thought in your mind. Each month you have to mentally reevaluate if you might need the policy and if you ask yourself something like that often enough, the answer is bound to be yes at some point.

Want some effective divorce insurance? Try premarital counseling. One study found that couples who went to premarital counseling had marriages that were thirty percent stronger than couples who didn’t. Counseling taught them communication and conflict resolution skills. What if you’re already married? Counseling during marriage has been shown to create a feeling of significant improvement in sixty-five percent of the couples who attend. If you are considering divorce, mediation is the most cost effective and satisfactory way to resolve the issues in front of you. No insurance needed.

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