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…)
Divorce Mediation & Collaborative Divorce Articles
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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.
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.
There are many reasons why divorcing couples choose mediation over collaborative divorce and litigation. Time and money rank tops among those reasons. These are the same reasons why many couples divorcing via mediation are not inclined to hire experts as part of their divorce process. While this can be okay in some cases, in others, this approach can be “penny wise and pound foolish.” The good news is that if mediating spouses need outside expertise they can share the expense of hiring neutral experts to help come to an equitable settlement. (more…)
Whether you are divorcing via litigation, mediation or collaborative divorce, you need to divorce yourself from this thought: Your retirement savings are not a marital asset. Truth be told, your retirement savings are a marital asset—just like your home, bank accounts, etc.–and will be part of any divorce settlement you and your spouse strike. In fact, for many people their retirement savings are their largest marital assets after their home. So whether you are the one who has been paying into the 401(k) or pension fund at your job or you are the nonworking spouse who has little or no retirement savings, it’s all on the table in your divorce. (more…)
When you hear the term “alimony”, there’s a tendency to think there’s no way a divorcing couple could ever agree. Hence, there’s often an assumption that divorces where alimony is involved might not be good candidates for mediation or collaborative divorce. With the new alimony statutes in Massachusetts, where alimony terms are now more clearly defined, mediation or collaborative divorce are still the best options for divorces that might include alimony.art of what makes mediation or collaborative divorce a better option stems from the interrelationship between alimony and child support. Any weekly support payment can be designated as either all child support, all alimony or a combination of both. There are pluses and minuses for each designation.
Some judges prefer one option, others prefer a different approach. It literally varies from judge to judge. Thus, your result might be determined by your judge’s personal preferences rather than your individual needs. For couples going through mediation or collaborative divorce, the options around child support and alimony can offer negotiating opportunities that might not be available in a litigation setting and often result in outside-the-box solutions.
In collaborative divorce, in particular, divorcing couples typically work with experts to address things like finances, child support, college, etc. Many collaborative teams retain financial experts to assist in making financial decisions. These financial experts will analyze options available to the parties and often propose solutions. The use of alimony versus child support is one variable that can provide flexibility for divorcing couples, depending on the particular situation.
For example, child support is paid with after-tax income by the payor and is not considered income and therefore not taxed to the payee. Alimony, on the other hand, is tax-deductible for the payor and must be declared as income by the payee. If the parties are in different tax brackets, it might benefit the payor from a financial and tax strategy standpoint to pay alimony and benefit from the tax deduction as opposed to child support. The payor might be willing to pay a larger weekly amount in order to get the tax benefit and also to offset the taxes that will be incurred by the payee. The payee may prefer to receive a larger support payment designated as alimony, even though he/she would have to declare and pay taxes on the income, rather than a lower child support payment. A financial expert is critical to this type of analysis as there are a number of related tax regulations that will need to be considered when crafting an alimony/child support designation.
Timing can also play a part in the alimony negotiation. Child support can last up until age 23 if your child is a full-time college student or 18 if your child enters the workforce after high school. The duration of alimony payments under the new alimony law is determined by the length of the marriage and/or relationship. In litigation, you might receive a child support order that is going to end in just a few years because of the ages of your children, requiring you to go back to court for alimony. In mediation and collaborative divorce, the parties can anticipate future events and plan around them to save the necessity of future trips to court.
What the alimony and child support options do, as part of mediation and collaborative divorce, is put more control in the hands of the divorcing couple. A judge, though learned and experienced, does not know your situation. He or she will most likely follow the formula laid out in the law to the letter with little or no flexibility. By considering alimony or introducing it as an option in mediation and collaborative divorce, you can create some flexibility to reach an agreement that best meets the needs of all parties.
A life and death matter divorcing couples should consider is life insurance.
Most couples get some form of life insurance during the marriage and, in most cases, they name their spouse as the beneficiary. It’s not unusual for divorcing couples to keep the existing life insurance in place after the divorce. But no matter what the method of divorce—litigation, mediation or collaborative divorce—both parties should re-examine life insurance coverage, particularly if children are involved. (more…)
One of the many selling points for mediation versus litigation is time. In general, divorcing couples who are committed to resolving matters out of court can get divorced in far less time than it would take a case to go to through the court system. That said, a mediation should not be seen as a “quickie” divorce. If anything, it makes paying attention to the details even more important.
Why? Plain and simple, you have to come up with a divorce agreement that you can live with not only today, but five to 10 years down the road. If financial information surfaces after the divorce is final, or if it is available at the time of the divorce but one or both parties choose to ignore it, it can be extremely difficult to go back and change the divorce agreement. So being as thorough as possible during your mediation is critical. That’s why I always advise my mediation clients to retain counsel, even if they agree on everything. (more…)
Many times I am asked about the most distinct difference between collaborative divorce and litigation and why collaborative divorce can be better. Perhaps the most notable difference lies in the communication. More specifically, the amount of direct contact you have with your spouse during the divorce process and negotiation. (more…)
When it comes to taxes, most people would prefer to pay as little as legally required. So it stands to reason that when a couple divorces, who gets what tax deductions can become a matter of contention. Mediation and collaborative divorce can help prevent disagreements over tax deductions from escalating into time-consuming, retainer-devouring delays. (more…)