To Mediate or Not . . . That Seems to Be the Question?
By Allison Davis, Esq.
Things are not going well on the home front and you and your spouse decide that the marriage is over. What is next? Where do you go? What do you do? These are normal questions which have varied answers depending on your circumstances. Basically, there are two roads to travel; litigation or mediation. More and more people today are choosing the mediation route as an effective means to reach a good result. Why?
Mediation allows you to work out the issues of your divorce in an amicable, affordable, non-confrontational, and non-adversarial manner. Mediation is done with a neutral 3rd party mediator, who can help you in identifying the issues that need to be resolved and then help you in reaching a realistic result that works for both of you.
Mediation allows you both to put your heads together to work out solutions that fit your needs and lifestyles. What works for some families will not necessarily work for yours. Who knows what will be the best way to handle these issues better than you? When Courts are involved, the wants of the parties are not taken into consideration nearly as much. The Court has to divide things up in an objective fashion, doing what they think is best. The reality is that if both you and your spouse are willing to be honest and forthright, you know what is best and can broker the best deal of all.
Mediation generally moves much faster than litigation because you have more control. You are not waiting on attorneys or the court’s calendar. The matter will move as quick or as slow as you allow. Your responsiveness in providing documents and your willingness to work on reaching an agreement that is fair to both of you will set the pace.
Mediation will only work however, if both parties are willing to give and take. Reaching a settlement agreement is about S E T T L I N G. Both of you have to give up something to get something that you want more in return. If you are not willing to give up anything, then mediation is not the option for you.
The truth of the matter is that nobody gets everything they want in a divorce, but Mediation will likely get you something you can be happy with, faster and for far less money. Call me to schedule an appointment to discuss if mediation is right for you.
How to Handle the Holidays When Faced with Divorce or Separation
By Allison Davis, Esq.
The holiday time of the year can be very difficult for families that are facing separation or divorce…especially for your children. How you choose to
deal with it can have an impact on the wellness of your children and the future negotiations between you and your spouse.
Children generally take their lead based on the actions of their parents. Remember, it is not what you say, but what you do. . . and what you do could wind up backfiring on you if you are not careful. The most important thing that you and your spouse can do is to put your children first and do what is in their best interest. Things to think about:
- How have you always celebrated this holiday? Whose family have you traditionally spent it with? For instance, is Christmas Day always with Mom’s family and Christmas Eve always with Dad’s family? Is the first night of Chanukah the most important to your family? This might be the way to start things off. However, as great as old traditions are, it is great to start new traditions as well. Just because you may have always celebrated one way, doesn’t mean it isn’t time for a change.
- Do either you or your spouse place importance on a specific part of the holiday? Some families do morning or afternoons celebrations where others meet around dinner time. Is it possible for you both to enjoy different parts of the same holiday? Always try to be flexible.
- Do you and your spouse practice the same religion and celebrate the same holidays? This can certainly make it easier and allow your children to have the best of both worlds.
- What do you think the children really want to do? While they should not be able to make this decision for you, if you know they only get to see certain extended family members during a particular holiday, will they feel cheated or upset if they don’t get to celebrate with them? How can you create new memories and traditions for them to cherish and look forward to?
- How would you feel if you only received the holiday schedule you offered to your spouse? Often times when one spouse wants all of the holidays and doesn’t want to share them, it is useful to ask them how they would feel if they were offered that very thing. Your children will thrive if given the opportunity to spend quality times with both parents. You are both transitioning from having all the holidays spent with your children (and each other), to something less. You are not the only one feeling the loss.
- Be encouraging to your children and tell them it is okay that they will not see you for this holiday, but that you will see them the next day, or the next year they will celebrate that same holiday with you. If your children know you are supportive, they will be happier.
- Can you and your spouse discuss parameters regarding holiday gift spending? The holidays can put a financial strain on any family, but it is even more difficult when you are going through a separation or divorce. Can you each work within a budget? Can you agree to contribute equally to big ticket items? You both have to remember that there was likely a budget before and it will be tighter now. Try to find ways to work together so you don’t duplicate gifts. They don’t really need an iPad for each of your homes.
The most important thing to remember is that you are BOTH parents to these children forever. You are both going to have to work together in raising your children. That starts with sharing holidays, and will continue to sharing many future special events in your children’s lives, including sporting events, graduations, birthdays and weddings. How you behave now will have an impact on your future.
If you and your spouse need help getting through the holiday times, please feel free to call my office to schedule an appointment.
Thinking About Filing for Divorce? Think about the finances.
By Sean P. Lenihan, Esq.
If you are contemplating filing for divorce, one of the most difficult tasks can be gathering together all of your financial documentation and account information. In most marriages, usually one person is in charge of the finances. This can leave the other party clueless about what the parties own and how much they owe. The only way for you, or your attorney, to be sure you are getting a equitable arrangement is to educate yourself as to the status of your financial situation. Here are a few things you can do to help you prepare for your divorce:
First, run a credit report on yourself. You can get a copy of your free credit report online using websites like CreditKarma.com. Your credit report will list all of your open joint bank accounts, savings accounts, any joint accounts with outstanding balances or debts. Then contact your accountant and financial adviser about getting copies of any records they have such as tax returns and investment statements.
Start gathering statements from any bank accounts you may have, including checking, savings and money market accounts. You may be asked to provide 3 years of back statements during the discovery phase of your divorce, although many attorneys don’t require it. Most of this can be obtained online through your bank’s website.
Also look for life insurance policies that you may have. Your final divorce agreement may require you to provide life insurance, so be aware of what you have. It’s also important to find out whether your life insurance policies have a cash value. If your life insurance is through your employer, you can normally get a copy from your human resource department.
If you own a house, try to obtain any records pertaining to your home. Mortgage statements, home equity loan statements, and tax records can all be helpful in determining how much equity is in your home. While a property evaluation by a real estate agent is free and can be helpful, it is not generally accepted in Court. However, don’t pay to have an appraisal done just yet. That will need to be done by a person agreed to by both parties or as ordered by the Court, with the cost being split equally by both parties.
Gather retirement account statements and, if any of your retirement account was accumulated pre-marriage, locate a statement of that account as of the date of your marriage. Often, pre-marriage contributions can be excluded from the asset division. Know what the value of your retirement plan is now and what it was on the day you were married. If you have a pension that started before the marriage, that can be valued professionally to make sure you’re getting a fair deal.
The better informed you are about your financial situation going into a divorce, the more your lawyer can help you in arriving at an equitable settlement.
New York State Divorce No-Fault Laws
By: Allison Davis, Esq.
People still ask me if they need “grounds” to get divorced in New York. The answer is NO. With the No-Fault laws in place, the “grounds problem” is not a problem. No longer do you need to allege that your spouse was adulterous, cruel and inhuman, or that she/he abandoned you, constructively or otherwise.
The no-fault divorce provides a legal basis for a divorce whereby one party swears under oath that there has been an irretrievable breakdown of the marriage for a period of six months or more. The court will grant a divorce under this ground, so long as all other issues relating to the divorce have been resolved. This requires a full resolution of all of the economic issues in the case, including equitable distribution of all marital property; the waiver or payment of spousal support; payment of child support; payment of counsel fees and expert fees, if applicable; as well as all issues pertaining to custody and visitation of minor children of the marriage.
A Stipulation of Settlement or Settlement Agreement must be drafted which discusses how all of the issues are being resolved. Reaching an agreement on these issues is generally the most difficult part. It entails both parties ‘willingness’ to negotiate their position in order to amicably resolve their differences. Once the terms are agreed upon and incorporated into an agreement, it is signed by the parties and submitted to the court with the final divorce papers.
Every person’s situation is unique and requires specialized attention. If you are interested in hearing more information regarding a no-fault divorce, please give me a call and we can set up a free consultation where we can discuss your individual needs.