Mediation or Collaborative Lawyers? (Part 2)

Increasingly in my practice couples come to me for mediation when one of the two - usually the wife - has a decided preference for Collaborative Practice. The "preference" derives from an intuitive sense that she would be much more comfortable with the protection and support of a Collaborative Lawyer who will advocate without being adversarial. Negotiating for oneself in mediation is not for everybody, and not even for all well-educated, competent and articulate adults. The problem in these situations is that the Husband is typically adamant about mediation. My view is that either person should have veto power over mediation which is supposed to be, after all, a voluntary process. The Husband will not be disadvantaged by having a Collaborative Lawyer. The Wife may well be disadvantaged by not having one.

"Dr. O'Brien I (no longer) presume."

The vitality of O'Brien v. O'Brien continues to be sapped in the First and Second Departments after having already suffered grieviously in the upstate Departments. In Kriftcher v Kriftcher, --- N.Y.S.2d ----, 2009 WL 262707 (N.Y.A.D. 2d Dept), the Second Department reduced a 40% award to the non-(law)degree-holding spouse to 10% because they saw little evidence of contribution from her. The Court stated that the non-degree-holding spouse had the burden of demonstrating a substantial contribution.

Practitioner Post: Capping Child Support

The First Department recently reminded, yet again, that in determining where to cap parental income for child support purposes one should calibrate it to the actual needs of the child. Are we focusing too much on where the judges are putatively capping it for a particular county, rather than on the children's expenses? Should we be doing what the lower courts actually do or what they are supposed to do? And if we go by expenses, does that mean that we build in an increase when that five-year-old turns fifteen?

When we say that "NY County and Westchester are "now up to" 375K, what exactly do we mean? Because not every judge in the county will go that high. And when the monied spouse is making just over 375K they are less likely to do so than when s/he is making substantially over that amount. And is the custodial parent's income being taken into account in the so-called "combined parental income"? It is supposed to be yet many judges don't bother. So, again, do we do what the judges actually do or what they are supposed to do?

The easy answer to the ambiguity is that you lay everything out for the parties or the clients and let them decide. Yet there is a temptation to oversimplify, rather than to explain at length that although there is a "statutory formula" it is not nearly as predictable as one might think(even putting the (f) factors aside). I think we fear overwhelming them in the name of precision and thoroughness.

When and What to Tell the Children

The consensus among child psychologists is that the best time to tell the children that you are getting divorced is about a week before one of you leaves the marital residence. That way, you can be as specific and concrete as possible about what the future will look like: "Daddy will be living just a few blocks away. You can come see his apartment, etc." And it limits the time that they can get anxious about the very move itself, or caught up in the ambiguous situation of being told that a divorce is looming and yet there you remain, living together.

As hard as it may be for one of you, present the divorce as, if not a joint decision, then at least as "Mommy and daddy just cannot live together anymore" and if they ask you why, don't blame one parent in the name of honesty. You can avoid being dishonest without dumping information that they are not equipped to handle and should not have to try to handle. And the most damaging thing for them to know is that the precipitating event was an affair.

Tell them that they are not to blame for the divorce(they'll think they are), that you both love them and will continue to love them and be in their lives. And stress as many points of stability in their lives that you can: same school, same neighborhood, same friends, same apartment, etc.

Did you know . . .?

When a 401(k) retirement plan is distributed pursuant to a Qualified Domestic Relations Order, the spouse receiving a portion of it from the plan holder may be able to make a one-time withdrawal without penalty as a divorce exception to the usual rule that you cannot do so without penalty before you are 59 1/2. I.R.C.Section 72(t)(2)(C).

Four Divorce Mediation Myths

1. That you and your spouse have to be "amicable" to succeed in mediation. Not so, unless you are so angry that you cannot sit in the same room, much less listen to what the other person has to say. A competent mediator can handle a high level of discord.
   
2. That you need to be in basic agreement about the issues before you mediate. Mediation is a dispute resolution "process". It presupposes conflict.
   
3. Choosing mediation means forsaking lawyers. It is a different relationship to lawyers. Instead of retaining them as surrogate negotiators to "handle" your settlement for you, you use them as consultants on an "as needed" basis.
   
4. That the only alternative to mediation is litigation. Collaborative Practice, in which each spouse retains a collaborative lawyer, is intended for people who are drawn to the concept of mediation, but for whatever reason do not feel comfortable without the support of a lawyer present in the room who will advocate for them without being adversarial and without even threatening to go to court.

Mediator or Collaborative Lawyers?(Part 1)

It's a classic mediation vignette. The wife wants to have her husband's business appraised and brings it up in mediation. The husband has a reaction. Not necessarily an angry one, mind you. Perhaps a plaintive,"Don't you trust me to tell you what it is worth?" Or a softly-spoken threat: "If you go down that route, then we might as well litigate". As the mediator, I note that she of course has the right to an appraisal. And I acknowledge his concerns. I also suggest an intermediate step of having an appraiser attend a mediation session to talk about the appraisal process and answer questions and concerns they may have. But at the end of the day the Wife, more often than not, backs down.

Had there been collaborative lawyers in the room, then it wouldn't be completely on her shoulders and it wouldn't feel quite so personal.