Long Island Family Law and Mediation Blog
This blog is the conclusion of my six part bullet point series summarizing my divorce mediation blogs over the years.
Mature couples going through divorce, sometimes referred to as gray or mature divorces often have a different perspective than younger couples. Mediation is a good option for these couples as well, though, some will still opt to litigate. After all, it takes two people willing to sit down and negotiate to be able to engage in alternative dispute resolution. Having an expeditious process, which mediation is the most likely to be, is often a top priority for older divorcees. Having a fair settlement that allows each side to meet their needs going forward is of utmost importance. Like for everyone, these couples are advised of the importance of using review attorneys and speaking with financial and tax professionals to ensure that they will be able to take care of themselves, in the right manner, after the couple separates and divorces. The mediation can focus on budgets and how it is that the transition from one household to two can be accomplished so that everyone is able to move on with the next chapters of their lives. How to handle distribution of retirement assets like IRAs, 401ks, and pensions is particularly important to focus on in divorce mediation for older individuals. What to do with the house, marital debt and perhaps child custody (if there are children under 18), and child support (which the default law in New York is that it lasts until 21 years of age) all are topics that might still apply. Everything needs to be explored.
Notably, social security benefits are not something that can be distributed in divorces. Rather, each person’s entitlement to social security benefits is determined by the federal Social Security laws. But social security benefits might be something that does get discussed in mediation. The benefits are income to the recipients and can be important in determining the proper amount of maintenance or support to be paid from one party to the other and for how long it should last. Likewise, someone’s entitlement to Medicare is something of a matter covered by federal law. This might be worth discussing in order to figure out how long one spouse needs to stay on the health insurance plan of the other. Often a separation agreement might be an option to stay on the spouse’s plan for a period until Medicare would kick in. Divorce is an event that in all or most instances prevents someone from staying on the health insurance plan of the ex-spouse. When Social Security or Medicare kicks in is something that parties can discuss with their divorce mediators in order to figure out how long maintenance should last.
How might one spouse try to get the other to agree to explore the process of divorce mediation for their divorce? Since it takes two to be willing to mediate one side might point out that mediation is a less antagonistic process than a court battle and will be easier on the children. There is less hostility between the parents involved in mediating than litigating parents in most instances. Kids sense and are affected by tension between parents. There are studies that show that conflict is one of the most important factors in measuring the long term well being of children of divorcing parents. If separating and divorcing lowers the conflict between the parents their long-term well-being is usually not affected according to the studies I am referencing here. Continued conflict, however, such as is associated with court battles though had a negative impact on the long-term well-being of these studied children. Appealing to the other spouse’s pocketbook is usually a winning point. Mediation is in most instances the least expensive process to get separated and/or divorced. Of course, the speed of the process is usually a big selling point as well. Most often divorce mediation is the more expeditious route to go when comparing divorce processes.
Some couples, particularly those involved in abusive or relationships that involve domestic violence, may not be right for mediation. The concern is the imbalance of power associated with these types of relationships. Though, I do not believe that just because one was involved in an abusive relationship that they should be automatically foreclosed from the possibility of using mediation as their process to get divorced. It is of more importance in this kind of relationship to stress the importance of the use of review attorneys. Lawyers may even attend mediation sessions with couples. I do not believe that if both sides of a couple are willing to use mediation as a process, and certain safeguards are in place such as review attorneys that someone should be forced into the adversarial litigation process automatically because of past abuse or violence. But these are tricky situations that must be approached on a case by case basis. I just do not feel that automatic bars to the process are fair for people that really want to take advantage of the positives of mediation as a process.
What benefit does seeking the advice of accountants and financial professionals have to people in a divorce mediation? Financial professionals can help focus on budgeting current and potential future expenses like bills and taking care of the kids. They can empower people to understand tax implications and financial considerations involving support, maintenance and equitable distribution of marital assets and marital debts. Another possibility is these professionals can help a divorcing individual understand and even work with business evaluators, appraisers, retirement benefit professionals and others to ensure proper handling of the financial aspects involved with a divorce.
People should expect to be bound by agreements made in divorce mediation. Marital agreements are subject to a heightened level of scrutiny compared to ordinary contracts. However, absent fraud, duress, undue influence, or that the agreement is so lopsided that no reasonable person would agree to it these agreements are not set aside, in most instances. What this means is that people can usually rely upon properly drafted agreements made as a result of divorce mediation, unless one of those circumstances apply.
This concludes my bullet point blog series about divorce mediation. Mediating couples are invited to schedule their free initial consultation with my office together. Individuals that are interested in using me as their litigator or review attorney, instead of the neutral mediator with their spouse, can schedule a one on one consultation, up to the first half hour is free.