Divorce Mediation & Collaborative Divorce Articles

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Why Ben and Jen chose mediation

Ben Affleck and Jennifer Garner mediation

Ben and Jen: Breaking up is hard to do.

That headline should probably say, “why Ben and Jen probably chose mediation”. Without knowing the two parties or being involved personally, that’s all I can do. Yet as a practicing mediator for the past 25 years, it’s fairly obvious why a high-profile couple would choose mediation: control.

That answer might surprise those of you who thought money. While even couples worth a combined $115 million may not wish to spend more than they have to on attorneys, there will be legal fees whether they settle in court via litigation or privately in mediation.  But by taking the latter approach, Mr. Affleck and Ms. Garner can control the outcome of their divorce settlement. (more…)


Is there a type of person who shouldn’t use collaborative divorce or divorce mediation?

I’m a collaborative divorce and divorce mediation attorney. As you have read in this blog over the last several years, there are a great number of benefits to using both methods to resolve issues so that divorcing couples can reach a divorce settlement fairly and swiftly. Yet as firm a believer as I am in both methods as effective means to end a marriage with minimal hurt and stress, some divorcing couples are not suited to collaborative divorce or mediation.



3 Reasons Why Divorce Mediation Can Cost More Than It Should

“Time is money”. While this is true in just about any business, it’s even more true in divorce cases. That’s what makes divorce mediation so appealing to many couples. Instead of being at the mercy of the judge and attorneys, divorce mediation puts the onus on the divorcing couple to do the necessary legwork to move the proceeding along. Usually, the better prepared couples can come to an agreement within a matter of months while the standard time period for a litigated divorce is one and a half years. (more…)


How do you rate a collaborative divorce?

image for collaborative divorceTelevision networks have the Nielson’s. Attorneys have Martingale-Hubbard and Avvo. Couples going through a collaborative divorce, however, act as their own rating service during the course of the proceeding and grades are based on whether or not both parties’ objectives/goals are being met.

Confused? Let’s take a step back. At the first meeting of a collaborative divorce, couples are asked to clarify their goals as to what they want to get out of the proceeding. These goals can vary depending on the person, the couple and their situation. (more…)


Who gets the debt?

Opening discussions in any mediation or collaborative divorce typically center on topics like the children, the house, the savings account, retirement funds, etc. Very few include things like the amount of debt accrued within the marriage. Perhaps it should.

Whether it’s mediation or a collaborative divorce, the most common types of debt I encounter are:

  • Student loans
  • Taxes
  • Credit Cards

In a divorce, student loans tend to stay with the person who took out the loan. So, if your spouse had a student loan, that debt would be his/hers after the divorce. If, as a couple, you are involved in helping out your child or children pay off their loans, that needs to be negotiated as part of the divorce.

Many couples file joint tax returns. Therefore, if there is a debt, according to the IRS, it is owned by both spouses. And the IRS can decide to collect the whole thing from whichever spouse has the most or easiest-to-reach assets.

Sometimes one spouse handles tax preparation and payment and the other spouse may not be aware of a debt. In either situation, it is crucial to find out whether there is tax owed and how much so that the tax debt can then be part of the negotiation.

Credit card debt can present a real challenge when it comes to mediation or collaborative divorce and there are many layers to this onion.

As a mediator, you hope a couple that agrees on who incurred the credit card debt and whether it was used by the family or to the benefit of only one spouse. Generally, responsibility for the debt goes to both spouses if the family benefited and to the charging spouse if he or she benefited. But this can get tricky.

Defining who pays the credit card debt takes into consideration many variables. For example, is it a jointly owned card? That means did you apply for the card as a couple. Many credit cards give you the option of adding your spouse as a second cardholder after the fact. That’s technically a little different because his or her name is not on the application and therefore they are not legally responsible for the bill.

So, when assessing who gets the debt from credit cards, we first look at whose credit card it is. For joint credit cards, the negotiation can include a purchase-by-purchase assessment. This is where you classify a purchase as for one of the two spouses or one something purchased that benefitted both parties. For example, booking airline tickets for a trip you took as a couple would be owned by both of you. The credit card debt for a flight for a golf weekend taken by one spouse might be owned by that party.

Other items that could be considered marital purchases would be groceries, household items, home repair products, etc.

One of the benefits of collaborative divorce as it pertains to debts of all kind is that a financial planner is typically involved as one of the team members. This helps both parties come up with an accurate assessment of the divorcing couple’s current financial status and that aids in the planning of settling debts.

In mediation, debts can take on a more delicate nature if the parties are not aware of each other’s spending. Full disclosure of any and all debts is key to making the mediation go smoother.

One key objective in any type of divorce—litigation, mediation or collaborative—is that the parties should agree on who keeps which credit card and that only the name of that person be on that particular credit card account. There should be no credit cards held jointly at the end of the process.

No matter how amicable a divorcing couple might be, negotiations always have the potential for contention when resolving difficult issues such as dividing debt. Putting all your cards (pun intended) and your debts on the table is the best way to ensure that you reach a resolution that both parties can live with.


5 common missteps in mediation

In mediation, there’s an overall assumption that both parties are reasonable and are willing to work together to reach an agreement. In addition, it is not uncommon for at least one of the spouses to be anxious to get through the mediation in order to put the divorce behind him or her. This can sometimes lead spouses to assume that some that details of the mediation agreement do not require a high level of attention, or that if something important comes up later they will be able to discuss it with their ex spouse and come to a reasonable arrangement. Unfortunately, these assumptions can lead to the more common missteps in a divorce mediation. (more…)


Is there a better time of year to get divorced?

To listen to some radio advertisements, getting a divorce can be just as much a New Year’s resolution as joining a gym, giving up sweets or any other goal for 2015. While it’s true that many people pondering a divorce towards the end of the year will wait until after the holidays to begin proceedings, the reality is that one specific time of year is not necessarily a better time to get a divorce than any other. (more…)


A holiday time share—a good or bad idea?

Even for divorcing couples who get along and are working towards an amiable resolution, holiday visitation can be a contentious point of discussion. And unless you have been divorced before, questions are many: where for Thanksgiving?

Where will the kids be on Christmas morning to open up presents from Santa?

What are appropriate arrangements for the Jewish high holy days?

What about spending time with grandparents during the holidays?

Some divorcing couples will try to keep things as close as possible to the pre-divorce practices for the sake of the children — even to the point of spending time as a family during the holiday. But for most couples, the only solution is to try to divide up their time with the children over the holidays. For example, the kids spend Christmas Eve and morning with Mom and Christmas dinner and the rest of the day with Dad. Or, the kids are with Dad Thanksgiving until 3 pm and with Mom from 3 pm through bedtime.

From what I have seen as an attorney over the past 25 years, holiday sharing, in an effort to keep things close to the same as before the divorce, does not work over the long-term. In my opinion, you are much better off defining one holiday as Mom’s and one as Dad’s (e.g. the kids go to Mom’s for Christmas and half of vacation week and Dad’s for the rest of the week and New Year’s).

Where sharing can and does work is for religious celebrations that involve multiple days (e.g. Chanukah, Passover, etc.) when it’s important to both parents to spend some time with the kids each year. That should be part of the discussion during mediation or collaborative divorce.

That is not to say holiday sharing cannot work at all (for some couples and families it does). Yet based solely on couples I’ve worked with, the ones who most often end up back in front of the judge to alter the holiday schedule are the ones who try to divide holidays.

What starts out with the best of intentions can end up with one parent feeling slighted if they perceive their time with the children to be shorter than or less valuable than the time allotted to their ex. In a worse case scenario, this can result in an annual dissatisfaction around the holiday that is invariably communicated to the children, ruining the holiday for them as well.

Perhaps worse than that is the shared schedule puts the children in bad situations. For example, they end up sitting at two Thanksgiving dinner tables and aren’t hungry for more food at the second dinner. Or, the entire day is spent opening presents. That can be overwhelming to younger children, particularly at the end of the day.

The best solution I’ve seen is for couples to create a schedule for holiday visitation that alternates from year to year. One year the kids are with Dad for Thanksgiving, the next year with Mom, and so forth and so on. Same with Christmas or New Years.  Since each parent has exactly the same schedule for the holiday on alternating years there is a lot less to argue about.

In my opinion, alternating also works better than sharing holidays because it helps families to accept the reality that things are different now. That does not mean worse. Just different.

Accepting the new reality helps parents develop new holiday traditions that can be just as meaningful as the traditional ones (e.g. opening presents when they come to Dad’s house for New Year’s). It also forces parents to put their relationship with their children during the holidays first, before meeting extended family obligations.

One of the things I always tell clients is that a divorce agreement has to not only be one that works for your family now but five-to-10 years from now. If the holidays are important to you, then it should not be a detail of the agreement to be glossed over. Many couples think they can work it out on their own. The divorced couples who can do that are few and far between.

Having a definitive holiday schedule reduces the likelihood of a return trip to court to alter the agreement and creates the foundation of the new holiday traditions that divorced parents and their children will figure out. That, in turn, will help families enjoy and get the most out of their holiday time together.


A guaranteed way to reduce your lawyer bill

In a divorce, there are some costs that cannot be avoided—e.g. waiting at the courthouse for your case to be heard. There are other costs that can be. Ask any divorce attorney—litigator, mediator or collaborative divorce—about what other part of the divorce process drives up the costs unnecessarily and most will say when the client is unable to provide a complete and thorough reporting of assets and household expenditures without assistance from the attorney or his/her staff.

That’s why many attorneys, yours truly included, provide clients with worksheets to complete early in the process. With a complete asset and liability chart and monthly budget, the discussions can turn to such matters as alimony and child support, whether it is possible to keep the family home, custody and parenting schedules, etc. If the attorney has to help in filling out the worksheet and acquiring that information, it can delay those discussions. And that’s where legal fees can add up.

When thinking about financials, there’s a tendency to focus on assets: the family home, investments, retirement savings, pensions, investment properties, etc. Of course, those are important parts of coming up with a settlement, but just as important is understanding your household budget.

Let’s be honest. Most couples will know how much the mortgage payment is, how much a car payment is and a few other things. But is it likely that both people know the monthly budget for such things as groceries? What about how much the heat and electricity costs over the course of a year are, or how much fuel the family automobiles use and the cost of insurance for each family car?  What about the cost of uninsured medical expenses, prescriptions, and clothing for growing children?

A comprehensive and thorough understanding of what it costs to run your household is critical to your ability to advocate for yourself in a divorce proceeding and to assess settlement proposals from your spouse. The expenses that often get neglected are bills that only get paid once a year, like car insurance, homeowners insurance, life insurance, vacations, incidental costs and smaller fee items. The same goes for things like gym memberships, dance lessons, summer camp and daycare. Having everything you spend money on as a household must be in the budget and as accurate as possible to move the negotiation along.

Having a complete understanding of your budget, assets and liabilities enables you to work with the attorney and your spouse on the kind of life you want after the divorce. For example, many divorcing couples want to keep the children in the family house so they don’t have to change schools. To accomplish that objective will require a certain amount of money. Will the person remaining in the house have enough to do so?

The answer to that question then starts other parts of the negotiation. Perhaps keeping the house is not an option. Perhaps it is but with an adjusted budget that removes some of the non-necessities—e.g. vacations, dance lessons, dining out more than twice a month, etc. By providing a complete and accurate budget, you give yourself and your attorney the tools to begin negotiation much sooner in the process and that will ultimately reduce lawyer fees if everything else proceeds smoothly.

Besides being an emotionally consuming activity, a divorce is time-consuming. You have to track down a significant amount of information at a time when you would rather be doing anything else. Being able to attain that information will help greatly in reducing costs. But there’s an additional benefit.

While a lot of work, many people find completing a budget and knowing exactly what they have for assets and liabilities to be empowering. You now know what you are working with and can start to envision the life you will have after finalization of your divorce. This helps you prepare mentally, emotionally and financially. In a way, it begins the healing process. And it starts by filling out a few worksheets.

Again, to review what a sample asset and liability chart and budge might look like, please visit my website.