mediation

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?

{ 0 comments }

Mediation and the LGBT “Divorce” in New York

by Petra Maxwell on June 18, 2011

Post image for Mediation and the LGBT “Divorce” in New York

New York State is getting encouragingly close to the passage of a bill recognizing same-sex marriages. But until we actually see a signature on the page, New York (like many other states) does not recognize GLBTQ marriages and unions. This means that if you were married in another state, you can’t get a divorce in New York (or in other states that do not recognize gay marriages). And if you’re partnered in New York and break up, you have no access to the legal system to resolve the issues of your break up.

Mediation is the solution. In mediation you’re not constrained by what your state recognizes or doesn’t and you’re free to discuss and reach agreements about any conflicts that may arise in your relationship. You and your partner can work with a trained, neutral mediator who understands the issues involved in GLBTQ families and marriages. Your mediator will help you work through all of the issues involved in separating and will create a written agreement you both can follow.

LGBT Financial Issues: Joint Assets and Debt Without Divorce Court

When you end your relationship you may have some or all of the following joint assets and debts:

  • Home
  • Cars
  • Investments, stocks, and bonds
  • Credit card bills
  • Mortgages, car loans, home equity loans, and personal loans
  • Household items
  • Unpaid utility bills
  • Degrees or professional licenses earned during the marriage
  • Unpaid taxes
  • Bank accounts and CDs
  • Retirement accounts
  • Collectibles
  • Season’s tickets, frequent flyer miles, family memberships, and credit card points

Because you are not legally married in New York, these items cannot be divided by a divorce court. This leaves your family on its own, unless you turn to mediation. A mediator can help you negotiate a fair and equitable division of your assets, and then can create a binding contract that addresses how all of these items will be divided. He or she helps you work through the negotiations and discussions involved in the very emotional process of ending a close personal relationship.

Custody: Mediation for Gay Families with Children in New York

Mediation is very important for gay families with children, particularly if you are not both legal parents of the children. In this situation, there are no State regulations protecting the non-legal parent. However, in mediation, you are free to enter into your own contract describing your arrangements regarding custody, visitation and child support. The current state law doesn’t really matter as long as your agreement is reasonable and takes your children’s best interests to heart.

On the other hand, if you are both the legal parents of your children, you can get a New York court to enter an order enforcing your custody and child support issues. However, the best way to handle these sensitive family matters is to go to a mediator first to negotiate your parenting, child support and other asset arrangements yourselves, rather than to leave these decisions up to a judge. Then, have the mediator draft the settlement documents, and have him or her file them with the court on your behalf. Your agreement reached in mediation will be approved by the court and entered into an enforceable court order. Only in mediation are you able to work together to come up with a custody and child support plan that fits your family and includes as much detail as you need.

Alimony

Alimony is ordered in divorces to help one spouse get back on his or her feet, and sometimes as compensation for behavior that happened in the marriage. In New York, you must be in a hetero marriage to qualify for alimony through the courts. However, as before, mediation gives you the room to negotiate any financial terms you feel are appropriate under the circumstances and for the sake of fairness. So, if one of you needs some financial assistance in the wake of the separation, your mediator can help you draft an agreement that lays out the terms of the financial arrangement including a payment schedule. Your mediator can also assist you in structuring this so it does not have income tax consequences.

Dissolving a Marriage from Another State

In order to dissolve a marriage that may have occurred in another state or country, you have to follow the divorce procedures set up by that state or country. Most states have residency requirements that you must meet to be able to file. Your mediator can discuss with you how you can meet those requirements and get the marriage dissolved.

Clearly, under New York’s current system, those in GLBTQ relationships face numerous challenges when contemplating a break-up. Until New York State legislation catches up with real life, mediation offers the only compassionate and flexible way for couples to resolve the unique circumstances of their relationship outside of the courtroom.

{ 0 comments }

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.

{ 0 comments }

Post image for Mediation vs. Meditation: A Freudian slip on the old keypad?

There’s a difference of only one letter between the words “mediation” and “meditation.” It’s very easy to mistype one or the other words since they look almost the same. On the face of it, they seem like two entirely different things, but the two have more in common than just their spelling.

Mediation and meditation both require you to ground yourself in some way, find your center, explore what you really need and want, and take action to get there. They share the need for self-recognition and have the result of creating self-sufficiency. To meditate, you must make room in your life for the daily process, arrange your mind so that you are able to focus, and let go of the outer world as you hone in on your breathing and relaxation. Meditation has many proven benefits, including stress relief and a better ability to focus.

Mediation is really not so different. To mediate your conflict, you must put yourself in the right mindset, one that is not about conflict, but is about conciliation. You must make room in your life to attend mediation and give it your full attention and focus when you are there. You have to really push through the emotional layers to find the solutions that work for you and the other person. Mediation, like meditation, reduces stress, and allows you to move forward with your life. It also teaches you conflict resolution skills so you can reduce future conflict in the same way that meditation helps you learn to control your reaction to future stress.

How about a double whammy, though? Meditation combined with mediation? The two processes are very compatible and supportive of each other. If you’re in a situation that requires mediation, you’re under stress. Meditation can help you manage the stress and be better prepared to mediate. It can also help you practice calmness, which is very helpful in the mediation process, and will allow you to go a bit deeper within yourself to understand what your needs truly are.  Mediation can then help you find solutions to your problem, so that you are better able to relax and meditate deeply and more fully. Mediation helps you feel in control of your own life, which enhances your feeling of being grounded.

Together, the two processes form a perfect circle and more mediation practitioners may do well to recommend a little meditation to their clients.

{ 1 comment }