Probably the most important piece – in order to mediate – is to have two people who want to come through the big picture OK. Neither is out to destroy the other.
I had a couple come into my office last week who I could tell HATED each other. He works really long hours, and she is furious and has felt completely abandoned by him for years.
She has (to some extent in response) been over-spending, especially in these last couple of years, since they separated. He makes a lot of money – but they have a lot of credit card debt, which they really shouldn’t have to have at their income level. He is furious with her about that.
But at the same time, they both love their kids, and so they found the motivation to come to mediation, in order to get their divorce settled – and when the negotiations are over, some of the tension may dissipate – and in order to try to make things go as smoothly for the kids as possible.
So – the wife (I’ll call her Elise) said, “I am thinking of selling our apartment & buying a house with a tenant, in a cheaper neighborhood. Then we would have more room, and lower costs. But I can’t afford to buy a house unless I have all of the equity in the apartment, to work with.”
At first the husband (I’ll call him Dan) said, “No way I am giving you all the equity in the apartment. There is a lot there, and it’s mine, I want it.”
But within 5 minutes he said, “You know my children will never need a home. Since they live with you – if you want to move to a house, and you need the money, fine, we can continue to have joint ownership of the house, or I’ll give you the money.”
It was amazing to see the switch – to see him go from “no way,” to “sure.” and it was because he could remember his bigger goal – to make sure the kids are OK. And in this case – the hours he works – 7 days/week, for weeks at a time – he knows that the mom is the #1 person for the kids, they live with her. So – though he hates her as his ex-wife – he loves her as the mother of his children.
Opportunity for Future Conflicts?
(Now me as the lawyer-mediator-deal-maker is beginning to wonder if there is a way that the settlement could be structured so that he would give her 100% of the equity and not have to remain a joint owner. That might be possible, given all the facts of their situation, but we will have to see.)
Should they continue as joint-owners of a home? What I would worry about is the possibility for ongoing active conflict after the divorce, which is the one thing that the experts agree is the worst thing for the children. If they continue to own the house, will he be secretly mad at her, resentful, because he didn’t get his equity out, and he can’t buy a house? What about if they need a new roof or boiler? We would either have to work out all the details, so that these things are not opportunity for future conflicts, because the children, who always feel guilty when their parents fight (whether divorced or not!) may feel that they parents still own the house – a source of contention – because of them.