In this episode of Keep the Kids in Mind, Rachel interviews Joy Rosenthal. Joy has been a compassionate lawyer and divorce mediator for over 15 years, and is based in Brooklyn, New York. Her online course called “Landing On Your Feet – A Compassionate Lawyer’s Guide to Divorce,” provides legal information for people going through divorce.
In every episode of Keep the Kids in Mind, Rachel Green, a family, and divorce mediator with over 25 years of experience, interviews Marriage Therapists, Attorneys, Divorce Coaches, Child Development Specialists, Financial Planners, and Teachers to help people who are going through a divorce or separation with children involved. How can divorcing couples keep the kids in mind? What are the common pitfalls for divorcing couples with children and how can people protect children from the conflict, so that they come through whole and healthy? What are the (surprising) benefits to children of divorce? How can the parents move into a restructured family with 2 homes? This podcast explores these questions and more.
The starting point for divorce negotiations is to divide debt 50/50. This would not include debt racked up because of an addiction, gambling disorder, fancy dinners with a paramour. So the presumption that debt is joint can be questioned, depending on what the debt arose from. Lost a week’s pay gambling? That debt is yours. Dental bills and groceries? You’re sharing that.
Generally, mortgages stay with the house. A spouse gets the house, they would also get the mortgage. If the couple is selling the house, they pay off the mortgage and then split the remaining proceeds of the sale – equally, most often.
Responsibility for debt: Technically, credit cards are held by one person. Even if you are a cardholder on the account, the bills are only in your name, and you are the one that the credit card company will go after. However, if you are getting divorced, then the courts would have the authority to distribute the responsibility as they see fit.
To protect yourself, you and your partner can enter into a prenuptial or postnuptial agreement to clarify that debt in your name is yours, and theirs is theirs. Or you could say (in a prenup) that you will divide debt accrued during the marriage proportionally based on your incomes. (So if one partner earned $100k and the other earned $50k, the debt would be divided 2/3 – 1/3.)
The #1 thing I recommend is – know what’s going on in your household! Look at the monthly statement – forward it to your ex, after circling all the things you expect them to chip in for.
If credit card debt starts accruing, it’s hard to get out from under it, because the interest they charge is so high. You might have a chance to change it, restructure it – move it to 0% interest offers to keep interest charges from piling up – find a debt restructuring company, which will negotiate with your creditors, lower the balance owed and put you on a payment plan.
If you have retirement assets, maybe you can take a loan against them to pay off credit card debt. Those loans are great – you pay interest to yourself.
You can nip it in the bud – but only if you know about it. Some of the worst debt-divorce stories I have seen were where one partner accumulated debt that the other did not know about. Nothing like thinking, “great we’re selling our house for $1,300,000,” only to discover that your share will be $200,000 because there is debt that you only learned about at the closing.
You can also protect yourself with a postnuptial agreement. I worked with a couple whose only area of conflict was money, and they were debating whether to stay married. We negotiated the terms of a postnuptial agreement in which they agreed that any debt would belong to the person whose name is on the debt – and would belong solely to that spouse. Even if you’re already married, you can negotiate who will own what. Just be sure to put it in writing.
The courts have some test programs running where they refer cases to mediation. Parties are screened for some known red flags – but pretty much – if your case is sent to mediation, you have to attend – at least that first session.*
Some of these cases are rough! We have to undo 2-3 years of damage to their relationship and ability to trust each other, eroded from the litigation process, before we can even begin to have productive discussions about moving forward. And that damage crops up and again and again at every turn and has to be scraped away each time.
These couples are not necessarily “high conflict” couples by personality or psychology or history. It’s the damage that has been done by being in litigation and all of that time operating out of defensiveness and fear, with their normal communication blocked – sometimes at their lawyers’ instruction.
*The mediators donate 90 minutes of time, free, and then, if the parties so choose, they can continue at the mediator’s hourly rate.
The pandemic hit me hard – as it did so many of us – and I found that I could not write. That is why I have not posted about mediation in a very long time. I still care, I still mediate and find it engrossing. I love working with families to help them find the stepping stones through their separation and restructuring caused by breakups. I am sympathetic and want to help; honored that they let me into their lives, and share with me their concerns and priorities.
I just have not been able to write about it. But I have broken through, and will be blogging again.
I also am starting a new podcast – “Keep the Kids In Mind.” So many of my clients were children of divorce, trying to structure their divorce in a better way than their parents did, without destroying their exes or wincing when they think about what they did during this transition. Others have children themselves who they want to protect from their divorces. We will focus on how to do it better