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Do I Need A Mediated Prenup?

Sometimes people think they need a prenuptial agreement to keep property they own now, separate, in case of a divorce.  But everything that you own before the marriage will stay separate, as long as you keep it in your separate name.  So you don’t need a prenup, if all you want to do is protect your premarital property.

Still – in a good prenup mediation, we can discuss what you each feel is fair, and you can start your marriage without unexpressed assumptions and expectations.  Also, the prenup will memorialize what you have now – exactly what is your premarital assets and debt, so that there is no confusion, down the road.

Debt that you have now will be your separate debt, even after you marry.  Anything you receive as a gift or inheritance, no matter when received, will be your separate property. 

Where people get in trouble is when they mix up (commingle – is the legal term) separate property and marital property. (If you have good records, you can trace it, and get a separate property credit. So – for example – you inherit $250,000 from Aunt Tilly, and you use that as the downpayment on a home. 5 years later, you sell the home, and net $650,000. $250,000 is your separate property credit, and you split the balance – $400,000 – equally with your spouse. So you have $450,000, and spouse has $200,000.)

If you don’t have a prenup, here are the things that will be considered (by NY State) to be joint property – owned 50/50:

  • monies earned during the marriage
  • gifts given to both of you (such as wedding gifts)
  • retirement assets earned during the marriage
  • debts accumulated during the marriage
  • a business started during the marriage
  • equity accumulated in a home purchased during the marriage

If you want to change any of this, you can come to mediation and I’ll help you to figure out what will work for both of you, for your future.  In a prenuptial agreement, you can tailor your property rights to best meet both your needs.  Shoot me an email – or give me a call.

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Mediation or Collaborative?

After you decide that you are going to separate, the first question you want to answer is what process will work best for you both? Who are the professionals who can help you to find the steps through to this next phase of your lives? Do you both want to try mediation with a neutral third person to help facilitate your conversation? Or would you prefer to have your attorney sitting next to you during your negotiations?

Mediation requires that you both:

  • be willing to sit together in the room and listen to the other’s point of view, even if you don’t agree with what the other person is saying
  • be willing to voluntarily disclose all financial information
  • be able to express your thoughts and true feelings, with the other person present
  • be able to advocate for yourself, and for what you think is workable for the future
  • have an understanding of your rights
  • not be out for revenge
  • have some facility around finances, so that you both understand your living expenses
  • have the goal of coming up with something that is fair to both of you, and that will allow you to move forward, whole, into your separated futures
  • have some trust in the other person, that he/she is not out to screw you over or destroy you
  • wish to avoid attorneys all together
  • want more control over the process – timing, order of discussing different subjects – and costs
  • both people hope to resolve things themselves, rather than having a judge make decisions about your family and your lives.

In the mediation process, I ask for a retainer fee equal to 4 hours of work, which you would replenish when it reaches 1 remaining hour.


The costs of a collaborative divorce average from $10,000 to $50,000, but it is good for couples where:

  • you would like to have your attorney present to help you to advocate for yourself
  • you are worried about giving up too many legal rights, without fully understanding what you are agreeing to 
  • you and your ex are not on the same page with understanding about finances
  • Finances are very complicated, such as where one person is a business owner
  • you and your ex differ regarding how much information you have about finances (for example, one of you pays all the bills and manages the finances and the other ignores them)
  • we would like to invite other experts to be part of the process, such as a child specialist, or a divorce financial planner, who would act as neutrals in the process.
  • one of you has trouble listening to the other’s point of view, when you disagree, and withdraws from fights, or becomes flooded and can’t speak
  • we have questions about financial information, and would like a financial neutral to help facilitate the information gathering process
  • one or both people have difficulty expressing their actual needs thoughts and true feelings, and would like the attorney to speak for them about what is workable for the future.
  • neither is out for revenge or to destroy the other
  • you both have the goal of coming up with something that is fair to both of you, and that will allow you to move forward, whole, into your separated futures
  • have some trust in the other person, that he/she is not out ot screw you over or destroy you
  • both people hope to resolve things themselves, rather than having a judge make decisions for you
  • you both understand that, if you withdraw from the collaborative process, your attorneys will also withdraw, and you will have to start over again, from the beginning, with litigation attorneys.

In the collaborative process, I ask for a retainer fee equal to 20 hours of work, which you would replenish when it reaches 1 remaining hour.  

If you have any questions about how these processes work, please email or call me – you can contact me on my website – www.Mediate2Resolution.com

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Is Mediation Right for Me?  8 Reasons To Try Mediation:

 

  1. Faster Path to Closure: You may have been wronged – but getting stuck in conflict, and seeking revenge, will only keep you thinking about and tallying up – reliving – those hurts.  The goal of mediation is to wrap up this part of your life, resolve and settle, so that you can move forward to your new and (hopefully) happier future, without the conflicts of the past.  Let them go!

 

  1. Neutral:  The mediator is neutral.  I won’t take sides with you against your spouse, nor with your spouse against you. Instead, I will work with you to increase your understanding of each other and of your conflict, and help you to find ways that the future structure can work for both of you.

 

  1. Control:  Mediation allows you to have control over the process,
  • because you won’t agree until you are ready to – when the agreement meets yourneeds;
  • because you schedule appointments on your time-frame, and can take the time you need between meetings to gather information, consider proposals, run it by your sister/brother/mother/uncle/cousin/friend.
  1. Private: Mediation is private and confidential, so that you can frankly discuss cash income, addiction, infidelity and any other sensitive issues.
  2. Quicker End to Conflict:  Conflict is painful. Most people have a drive to resolve it. When you understand the sources of conflict, you have a huge release of creative energy which leads to terrific brainstorming sessions about how to solve the problem and end the conflict.
  3. Shared History: You will always have shared your years together.  Even though you are splitting up, you can’t change the past.  Do you want to ‘wish each other well,’ and move forward into this next phase?  Or do you want to destroy your former partner?  Your children will not thank you for destroying their other parent.
  4. Better Relationship In The Future:  You may want to attend future birthdays, graduations, weddings; be at the hospital for the birth of your grandchild.  If you have (a) child(ren) together, you will always be connected to your ex.  Mediation will help you keep the lines of communication open, come to a deeper understanding of why things may not have worked in your marriage, and be better able to tolerate seeing your ex in the future.

Litigation is ritualized war.  Afterwards, it will be hard to be civil to someone who tried to annihilate you, during your divorce.  Avoid doing that!  Many kids whose parents are divorced have said that the biggest gift their parents can give them is the ability to be in a room together, and be civil to each other.

  1.  Reasons People Choose Mediation (quotes from clients):
  • either we solve it – or a stranger will tell us what to do
  • I don’t want it to be lawyer v. lawyer
  • keep the friendship that we still have
  • have a fair process – fair for both of us
  • both of us want to do what’s best for our child
  • respect each other’s individuality
  • get clarity about what is the right thing to do
  • save money
  • accomplish our goals, such as making sure we are both OK, financially
  • want to be good co-parents
  • the law is a blunt instrument – discussion in mediation is more tailored to what we need and care about
  • hope to be able to be friends, in the future
  • want to spend time together with our child

 

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Advice for Children

Client: “We told our teenager on Monday that we are separating. I am uncertain how to have read the expression on her face…maybe slight shock, or disbelief. We have had so many years of conflict, it’s hard to believe she was surprised! This has really unseated me…we went shopping on Tuesday and had a nice day, really some great moments, bopping around looking for cool stuff. But there was a pallor that was present all day.

“I want to be able to tell her why this happened, so she understands, but I don’t want to play the blame game. I can’t be completely honest, and so I think she is confused…and I am getting so stressed.

‘I don’t feel grounded when [my ex] is around, and I am sad and angry. Sad about all the losses, and also doing this to her when she is getting ready to go to college. Everyone is putting on their happy face but this is confusing.

My response: It’s always amazing to find out how much kids can be in their own heads, and not notice things going on around them. We think they know/sense what is going on between the adults – but they often do not. Being a teen especially, is an experience full of compelling drama – much more interesting than parents are!

best rules:

  • let her ask the questions – don’t bring it up nor volunteer information, other than what and as she asks you for it/about it.
  • remember that – psychologically/unconsciously – children feel that they are half their mother and half their father, so that if someone says ‘your dad is lazy,’ they hear it as “half of me is lazy.”  That can help to guide you to avoid the blame-game.
  • remind her that she didn’t do anything to cause this.

In my experience, children ALWAYS know the truth of their parents’ divorce.  She knows both of you, inside and out, and over the next 20 years she will ask more questions. There is time.

The challenge will be finding that balance between feeling you are being your authentic self – and protecting her.  She doesn’t need (nor want) details.  If you’re feeling sad – you’re allowed to tell her that, too.  It’s the end of a long relationship, and it’s very normal to have mixed and complicated feelings.  For all of you. But complain to your friends and your therapist – not to her.

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A deeper way to think about intimate relationships

I just listened to Alain de Botton on the podcast On Being.
His work is so deep, thought-provoking, and moving. He turns upside down our commonly understood assumptions about intimate relationships, and gets to the deeper truth, of what we are trying to find when we search for love. He also has great insight into why people might stray – when in committed relationships. Recommended listening for everyone.

https://onbeing.org/programs/alain-de-botton-the-true-hard-work-of-love-and-relationships-feb2017/

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The Children’s Needs Can Guide the Parents

I met with a couple who used mediation for their divorce, about 14 years ago, and wanted to resolve a conflict now for their restructured family. The mother emailed me to tell me that they were having trouble figuring out the credit that the father should get for the child’s room and board expenses while he is in college.

She implied that they were having a lot of conflict, and that the children spent almost no time with their father, and that the parents communicated infrequently, and only via text.

I feel nervous before the meeting, worried that the distance of the years that have passed would turn the whole thing into a screaming match. It turned out that both children have had problems, and that the parents have really pulled it together to support the children in a way that I found very moving.

The mother started out by saying that she also agreed that her receiving child support while her son is away at college, and she’s not feeding him, didn’t feel fair. This lowered the temperature in the room, because father felt understood, and he didn’t have to “fight” as hard.

They told me about how their son is having some challenges, and the mother found a boarding school program for him to attend. The parents weren’t speaking much at that point, so the mother just put together the money to pay for a year in boarding school. The father said, “she did an amazing job. She probably saved his life. I didn’t have the money to pay for my half of that school, but in the future, if I do, I will pay her back.”

Since they both acknowledged each other’s needs, the rest was simple calculation. We finished up, and they left. When I came out of my office, about 15 minutes later, I saw them standing together outside, up the block, talking to each other.

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Reasons People Choose Mediation

• either we solve it – or a stranger will tell us what to do
• I don’t want it to be lawyer v. lawyer
• keep the friendship that we still have
• have a fair process – fair for both of us
• both of us want to do what’s best for our child.
• respect each other’s individuality
• get clarity about what is the right thing to do
• save money
• ensure our goals, such as making sure we are both ok, financially
• want to be good co-parents
• the law is a blunt instrument – discussion in mediation is more tailored to what we need and care about
• hope to be able to be friends, in the future
• want to spend time together with our child

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Negotiating a prenuptial agreement

A woman called me, distraught. She said that over the course of 4 months, she and her fiancé had paid about $10,000 in attorney’s fees, had months of stress and agony, and ended up getting married without having signed the prenup. Now, 3 months into their marriage, the unsigned prenup remained an issue, but their attorneys could not find a way to agree.

The confluence of their fears and their lack of confidence merged to produce a situation where they felt frozen and unable to move forward. When the husband’s lawyer said, “You might as well have her waive her rights to your pension and her rights of inheritance,” the husband did not know whether this was ‘standard,’ or unusual, and didn’t find a way to say “no,” to his lawyer – even though this was not his goal in entering into the prenup.

I met with them together, in a mediation session, and asked them what had been their original goals for the prenup. As we created a list of those goals, it became clear that they were quite aligned.

Robert owned some properties with his brother and mother, and wanted to keep those as separate property. Alicia was fine with that, that felt fair to her.

They asked me to use the prenup that their attorneys had drafted, and edit it. I had to do a lot of deleting, to take out all of the extraneous things that one attorney said was necessary to “protect” the client, and the other attorney refused to accept. I ended up with a postnuptial agreement that met their original goals, and was.

They came in again, we read it through, they made a couple of changes, and then they signed it that night. They were both so happy to find a way to resolve this whole matter so smoothly, after a process which left them feeling frightened and that their conflicts were intractable.

The power of mediation!

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Can you come back from litigation, and mediate successfully?

Highest conflict couple I think I have ever met with. Were they litigious, and went to attorneys who reflected where they were at? or did the attorneys make them more litigious? hard to know.

She was so angry she THREW a pad of paper across the room –with the most intense energy, as if she wanted to throw a boulder at his head.

Can they mediate?

They started their divorce process in a bad way – husband’s parents telling him “she might kidnap the kids and take them to Europe. (She’s from Europe, originally.) You should take the children’s passports, and change the life insurance while you’re at it,” which he did. Injecting fear and distrust.

And then he hired a process server to serve the summons for divorce on her – starting with an attack which makes anyone feel fear – and when you are afraid, you need protection.

The attorneys were fighting over the kids’ schedule for spending time with dad, and when the fight becomes framed as being about power – who will ‘win’ and who will ‘lose’ – it is hard to evaluate the benefit of trying out different schedules, seeing how they feel.

In mediation, I could ask “how about we try mom’s idea for November, and dad’s idea for December, and then meet in early January and see how the kids are doing, and how it felt?”

But then in mediation we start from an underlying premise that we can find what they both – at least as far as their kids are concerned – need. That there is a place which will meet the needs of all members of the family. An assumption of bounty, rather than one of limited resources. That quality time with each parent benefits the kids and all of them.

We need enough trust that if one says, ‘the baby had a lot of trouble falling asleep,’ the other parent will say, ‘oh, the poor baby, what do you think caused that? how can we help him to avoid that in the future?’ and they can work together to try to resolve the problem.

Here – not sure we had that.

Also – she was invested in proving that she has been the #1 parent in the kids’ lives – wanted to know dad’s work schedule over the past year, to prove that he wasn’t a consistent dad. Instead of the question framed as – how can he be a better dad going forward, given his work and travel obligations?

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Fuel for Fights

People get into the worst fights when what they are fighting about is not what they are really fighting about.

I am working with a couple who have an extremely (unusually) hostile and embittered post-divorce relationship. I am working with them as a parenting coordinator, not a mediator – which means that I was appointed by the court, and have the power to make decisions, if there is a time-sensitive matter pending. Usually, during mediation, I don’t have the power to make decisions (and why should I? Those are not my kids).

This couple contacts me periodically to mediate disagreements, as they arise.

Recently, they reached out to me, because their child’s pediatrician recommended that the child see a psychiatrist. (‘Hurray,’ I thought, because after witnessing the amount of venom and rage that these parents express toward each other, I could only imagine how pulled-in-two that child is constantly feeling – great to give the child the support of a therapist.)

But now they are tussling – bitterly – over which psychiatrist to choose! The father works at a premier, top-ranked teaching hospital, and received some referrals to a couple of doctors affiliated with the hospital, by someone in his department. The mother now thinks that anyone in the hospital is automatically suspect, and will be biased in favor of the father, simply because he works there.

Conflicts are:

Will Dr. be biased in favor of the parent who pays? One parent has offered to pay if services are not covered by insurance.
Will Dr. be biased if one parent is employee of the same hospital at which Dr. is working?
Will the child be pressured by one parent or the other to choose a Dr. which he/she chose first?

And the real underlying conflict is the competitive battle that these parents remain locked in – who will ultimately “win?” Because – I would think that credentials and years of experience would give the doctor a presumption of competence.