Articles Posted in Mediation

One of the weaknesses of litigated divorce is that it encourages rigid thinking that stands in the way of compromise.

Choosing your battles wisely is an important strategy in all areas of life, including if you are in the process of divorce. Unfortunately, traditional divorce attorneys often neglect to give their clients this advice, encouraging them to fight for everything they say they want, regardless of how impractical, impossible or destructive it may be.  And when the other spouse inevitably takes opposite positions on those same issues, there’s nowhere to go but to the courthouse where both parties will be subjected to the slow-moving and very public litigation process.

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People going through divorce often feel angry, confused, and alone.

They turn to their friends and family when they are contemplating divorce, in the middle of a divorce and all throughout the process.  In fact, I often get calls from family members or friends inquiring about the legal services that I can provide to their loved one.

Supportive friends or family members instinctively seek to protect a person they  love by saying negative things about his or her spouse.

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What looks like just another celebrity breakup might actually be instructive for any divorcing couple.

Ben Affleck and Jennifer Garner are going the way of Gwyneth Paltrow and Chris Martin in choosing a non-adversarial way to divorce while living in the public eye.

During her divorce, Paltrow made headlines for describing the process as “conscious uncoupling.” Many attorneys, including myself, appreciated the spotlight she had shone on non-adversarial divorce.

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A high-net-worth couple going through a divorce can benefit greatly by staying out of court.

Couples with considerable assets (which I will define here as more than $5 million) are often lead to believe that their divorce will be a “no holds barred,” brutal, lengthy process with astronomical legal bills and complicated offers and counter-offers. Because of this belief, many high-net-worth couples assume that mediation or the collaborative law process will not work for them.

They couldn’t be more mistaken. In my experience, the opposite is true; high-net-worth families have more to gain by keeping things civil and private. Unfortunately, many attorneys who practice litigation harbor a killer instinct that grows along with their clients’ assets, and they see a litigated divorce as the only way to satisfy that instinct.

I have compiled a short list of only some of the advantages that high-net-worth couples receive when they keep their divorces out of court.

  • Specialized support: High-net-worth divorces can be complicated, but they don’t have to be high-conflict. The best results come from a team approach. For instance, in the collaborative law process specialized professionals such as divorce coaches and financial neutrals (who come from a Certified Divorce Financial Analysts (CDFA) or CPA background) are part of the team. These professionals are available to help couples who are using the mediation process as well.

Divorce coaches help spouses to decrease the emotional triggers that are prevalent in most divorces and can overwhelm and hijack the negotiation process if not properly tended to. For example, they can help in situations where both spouses have strong voices and may be highly competitive with each other, as well as when there is a large power imbalance between the spouses with one having a very strong voice and the other having almost none.

Financial neutrals have expertise in understanding some of the more complicated assets that high-net-worth couples have on their balance sheets such as private equity investments, stock options, art collections, and privately owned businesses, as well as the more complicated tax implications of divorce.

  • Flexibility and privacy: Keeping your divorce “under the radar” and out of court means that you will have more opportunities to come up with creative solutions; this is something that a judge could never provide. Also, negotiations will be private so that information about your family and your assets will never be disclosed in an open courtroom.
  • Controlling one’s destiny: People with high net worth are accustomed to calling the shots in life. If you and your spouse cannot reach a voluntary agreement, a judge will make decisions for you. If you don’t like people making decisions for you in general, why give that up in a divorce?

Choosing mediation or collaborative law makes more sense financially. If mediation or collaborative law is the right process for you, the cost savings over litigation will be substantial.

If you would like to learn more about the differences between mediation and collaborative law versus litigation, I have recently put together a guide titled Why Court Should Be the Last Resort for Your Divorce. To obtain a copy, or to arrange a consultation, contact me today.

I was recently sitting at my desk when I received a text message from a phone number I didn’t recognize. In rapid succession I received the following missives:

  • “I don’t respect people who hit children.”
  • “You belong in jail for the rest of your life!”
  • “Where you can hit a woman!”
  • “LMAO, who’s not on parole!”
  • “How pathetic what a cheater you are too.”

This person, who was obviously in distress around a family law matter and possibly even dealing with domestic violence, was exhibiting a habit I see often with my clients: Talking to a spouse or partner directly becomes so emotionally difficult, they start using text messages as their main source of communication. While it can feel easier or safer to express difficult feelings by text or email, separating and divorcing couples should use these methods of communication only if they are careful about what they are writing before hitting the send button.

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As I picked up The New York State Bar Association Journal earlier in the month, the cover story intrigued me. It was called “More War Stories from the New York Courts.” It was about civil litigation cases that go on for years. The article didn’t discuss divorce, but that’s certainly what was on my mind as I read it.

I can’t imagine any parents would want to subject their children or themselves to the perils and terror of an actual war such as those raging in the Middle East, Africa and other parts of the world. So why are they so willing to subject their families to a war of their own making just because their marriage is ending?

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Sometimes the Solution Is Right in Front of You by Andrea VaccaI recently decided it was time to give my website a makeover. My website designer and I decided that blue would be a primary color in the design and she asked me to send her shades of blue that appealed to me.

I typed “blue” into my browser and went to work looking through Google images. Every shade of blue imaginable popped up. As I scrolled through, I found a few shades that appealed to me and there was one shade that I particularly liked, but I could only find it as the background to a word cloud. I spent quite a while looking for that same exact shade of blue that was clean and free of words. I had no success with my search, so I eventually decided to include the word cloud with the other shades of blues and sent them off to my designer.

A word cloud is more than just a collection of synonyms; the letters and words are designed to speak to the eye at the same time as they speak to the brain, guiding different people through different paths, ultimately leading to the same notion.

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Sometimes people in the middle of divorce litigation realize that the court system just isn’t working for them. Time is going by, the costs are piling up, and they seem further from resolution than ever.

At this point, it may be time for them to look at an alternative process, such as mediation, but where do they start? For divorcing couples in New York City for whom finances are tight, I highly recommend looking into FamilyKind, which has been a great resource for many who have found themselves caught in expensive litigation with few results to show for all the money and efforts they’ve expended.

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Something I have been seeing more and more in my practice as a mediator and collaborative attorney are couples living apart for long periods of time, without being legally separated.

For various reasons, many married couples decide to separate for years without having any legal agreements in place. They don’t realize until years later when one of them is seeking a divorce that the legal, financial and emotional issues caused by the years of separation can become very difficult to resolve.

Below are just some of the pitfalls that people encounter when they separate unofficially:

  • When two spouses start living separately, the clock starts ticking on a new status-quo. Eventually, the lifestyle maintained by the lower-earning spouse during the separation can become the standard for the amount of spousal support that is required in the future.
  • Non-legal separations do not necessarily end the legal financial union between spouses. That means all the money earned – or debts being incurred – by either spouse may still be considered part of the shared marital estate.
  • The higher earning spouse is not necessarily going to get credit under the law for the amount of support they’ve been providing.
  • Once a couple moves into separate residences, communication between them can break down even more than it was while they were living together, which makes negotiating a separation agreement even harder than it has to be.
  • If either spouse starts a new relationship and spends money on the new partner, it can be considered a “waste of marital assets,” which can result in complicated requests for repayment (financially as well as emotionally).

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I recently read an article on The New York Times wellness blog by Tara Parker-Pope called ‘The Decisive Marriage.’ In it, Parker-Pope explores the research gathered through The National Marriage Project and asks how does being decisive – or not – affect a marriage? Though it is not mentioned in the article, I thought some of the points would be especially helpful for people considering a prenuptial agreement. Parker-Pope writes:

Couples should make active decisions about their relationships and major life events. Showing intent in some form — from planning the first date, to living together, to the wedding and beyond — can help improve the quality of a marriage over all.

Prenuptial agreements are, by definition, a written agreement reflecting the intentions of the parties regarding their marital rights and obligations. By looking together toward the future, prenuptial agreements can help the couple to purposefully plan for this important, next stage of their relationship. Questions can be discussed and answered such as:

  • How will property be divided upon death or divorce?
  • Will spousal support be paid? If so, under what conditions?
  • How will household expenses be paid during the marriage?
  • Will having children result in different financial terms?

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