separation

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

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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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Mediation and the LGBT “Divorce” in New York

by Petra Maxwell on June 18, 2011

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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.

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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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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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