An Ode to Divorce Mediation

In this excellent article from the Jersey City Times, Jayne Freedman, offers, in her words, "an ode to divorce mediation", particularly its positive impact on children. Over Jayne's ten years of being happily divorced and of counseling families based on her own experience, Jayne has referred at least a dozen couples to private mediation instead of traditional divorce lawyers.

As Jayne writes, "Children are probably the best reason for parents to consider private mediation over lawyers and court. There are typically an array of intense emotions surrounding a divorce. And when anger is combined with parenting, you stand a good chance of letting it bleed into your children’s lives, coloring their sense of self. In the midst of a traditional divorce and custody battle it’s not uncommon for children to require cognitive therapy. They are sometimes depressed, anxious, or angry themselves. That’s understandable because our decisions and behavior will affect our kids. It’s not separation or divorce that hurt children, It’s conflict.

Children are hyper-aware of the tensions that ricochet between their parents, even if care is taken not to blatantly argue in their presence. When parents engage in mediation a more “collaborative” structure occurs. Collaboration is what mediators encourage and what propels you toward resolution. Counseling and therapy might be necessary too, just to help you separate with less residual anger, but mediation is the first step toward compromise.

Divorce is generally a crisis, but it needn’t be traumatic. How it unfolds is entirely in your hands.

Defining A Substantial Change Of Circumstances For Custody Modification

After a divorce or child custody determination, one thing that frequently comes up is the desire to modify the court’s order. 

 

It is well understood that child custody is always modifiable until the child reaches the age of 18. And while that sounds simple enough, the court will often reject petitions for change citing that there has not been a substantial and material change of circumstances since the entry of the last order.

In this excellent blog posting, Mat Camp addresses the two questions this raises: What constitutes a substantial and material change, and when does this change have to occur?

Your Attitude Makes a Difference!

Many people consider negotiations to be stressful and threatening. Others view them as challenges to be overcome. Do these different attitudes in negotiation influence the outcomes that people reach?

In this blog post by the staff at Harvard’s Program on Negotiation discusses research by professors Kathleen M. O’Connor of Cornell University and Josh A. Arnold of California State University that showed that your attitude towards and in a negotiation does make a difference. It turns out that having a positive attitude (along with high expectations) towards and in a negotiation will indeed affect the results, leading to a better result.

"The researchers examined the outcomes achieved by the study of participants who placed themselves in one of the two categories. When talks had integrative potential (also called a win-win situation), participants who viewed negotiation as a challenge were better at identifying and capturing opportunities to expand the pie than were those who viewed it as a threat. But in purely distributive (win-lose) negotiations, no significant difference in outcomes existed between the ‘threat’ and ‘challenge’ groups.

So, there are two points to be gleaned here: engage in interest based, or win-win negotiations, whenever possible, and be optimistic viewing the negotiation as a challenge (and not as a threat). You will end up with a much better result!

How Divorced Families Can Maximize Their Relief From The New Stimulus Package

The $1.9 trillion American Rescue Plan Act of 2021 (the "American Rescue Plan") is now enacted. The package expands relief provisions first introduced in the Coronavirus Aid, Relief and Economic Security (CARES) Act from March 2020 and introduces new measures to help families and businesses. What does this mean specifically for single parents or families going through divorce? There are 3 major components:

• Recovery Rebate Checks (also known as a stimulus check) – for parents and children
• Child Tax Credit – for dependent children
• Child and Dependent Care Tax Credit – for dependent children where the qualifying parent paid for care to work

There are a lot of nuances to this law. This excellent article includes a summary of the package’s major changes. The most important thing to know is that even if you did not qualify in the past, you may now, so it is highly recommended that you ask your tax preparer about your specific eligibility.

The Dangers of a "Do-It-Yourself" Divorce

Recently I had a couple come to me with a separation agreement that they drafted themselves and signed, making it a binding agreement. I believe it was done in an effort to reduce the amount of time they would spend in mediation. Through my normal process I bring up the topics and comment on how they can proceed to agreement after they have understood all of the particulars and how one decision can affect another. But each time I brought up a topic they had in their agreement, I was told they already agreed to it.

 

As we got further into the mediation, it was becoming apparent that what they had “agreed to” didn’t consider or address many other detailed factors which are very important. That then caused disagreement between them because they were each stuck in their own way of thinking with what they had agreed to.

In some cases, what spouses think they have agreed to does not correspond with what the agreement says. Other times, the language in the agreement might be vague, unclear, and open to various interpretations. This lack of clarity can cause both spouses to think that they are getting what they want without looking deeper at related factors to find out for sure.

In many instances, DIY separation agreements do not address some of the most important issues at all. These documents are often cookie-cutter templates that might provide a good general framework, but by necessity, they cannot go into great detail about a couple’s specific circumstances. Signing an agreement like this without fully understanding it can lead to critical errors, leaving a mess that will be much more costly to clean up later.

Those general separation agreement templates might work just fine if you don’t have any complicated issues to resolve with your divorce. For example, maybe you have not been married for very long, you have no children, do not own any real estate, and you have no other assets to speak of. In a case like this, it may be fairly easy to just sign the piece of paper, file everything with the court, and go your separate ways.

But the reality is that most divorces are not that simple and straightforward. If you have been married for even a few years, there is a good chance you have at least one child, and you probably own a home together and possess other assets, such as an IRA or 401(k) plan from work.

Did you know that the assets within an individual retirement account that accumulated during the marriage are generally considered marital property? Did you know that you might be eligible to receive alimony/spousal support at least temporarily?

What about your parenting plan? Did you remember to account for your child’s extracurricular activities or the fact that you have to work weekends twice a month? Did you work out your holiday visitation schedule in a fair and equitable manner?

This is just a sampling of some of the complications that can come up during a divorce. And when we delve deeper, it can lead us to uncover other issues that might not have been discussed.

It is great if couples can come to general agreements in advance of divorce mediation, but it can be detrimental when they DIY their divorce agreement without first being educated on some of the critical issues that should be addressed. Trying to save time or money with a DIY agreement that you don’t fully understand is likely going to cost you a lot more later on.

One of the biggest roles that I play when mediating is educating couples on all aspects of divorce and how one decision can affect another. By taking some time on the front-end to delve into these issues and ensure that everyone is on the same page, it will save couples the inevitable headaches and expenses that they may encounter down the road.

Divorce mediation done thoroughly and correctly still costs a fraction of what it will normally cost to litigate, so it makes good sense all around for couples to get their divorce agreement right the first time.