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.

HBO Show Divorce

Just watched the first episode of the new HBO show, “Divorce.”

They got so many things right. The humanity, pain and flaws that are in us all.

The irritation that we all feel with their spouses about petty little things when you’ve been married for decades. And yet, the way we end up knowing them inside and out, including their digestive schedules.

The way that a random little aside can trigger a huge fight. (Because, of course, it’s not random, and it’s not little. It’s part of a continuing conflict, that you return to to pick and pick and pick at.)

The appeal of the affair, the glittering idea that there is somewhere you can go and get back to your former life. The life that was there before you got married and had kids, where you can focus on just yourself, you can just have pleasure and escape and freedom. And how quickly that myth was shattered, when she told her lover that she was leaving her husband. “But you have children,” he said, with obvious consternation – revealing that he had no interest in being part of a future with her children.

The way that the husband said, “Let me give you an orgasm that will make everything okay,” trying to think how to fix things, and going straight to sex.

And then how I shuddered at the end when he said “I’m going to make sure that your kids hate you.” Kids will never thank you for making them lose their connection to their other parent. And yet – parents (married, separated or divorced) say the exact wrong things to their kids every day, because we are all flawed humans, and it’s realistic. And in the pain of recent separation, with all your nerve endings glowing, you can’t always see the big picture, and find your higher self.

Very painful show but good so far. I will watch the second episode.

Negotiation in the Shadow of Threat

I had a call yesterday from Josh, who is working with his wife in mediation, with another mediator. Josh called to ask me about being his reviewing attorney, and wanted to get my take on a couple of things.

Josh and his wife, Becka, were having conflicts over who would move out of their house. They had separated bedrooms months ago (Josh has been sleeping on the couch,) and have put a schedule in place for caring for their children, so that each took turns making dinner, being on homework duty – and having nights ‘off,’ just as they will do when they separate. But they are both still residing in the house.

Josh said that Becka is a type-A high strung person, who plays a lot of tennis and runs marathons, and that she has trouble not being in control. During mediation, she had said to him, “Either you move out, or mediation ends now, and I hire a litigation attorney.”

This is troubling on several levels. First of all, mediation is a voluntary process. The reason that the process is voluntary, is so that we end up with an agreement that works for both people and that reflects both people’s needs, interests, ideas, etc.

Becka was instead attempting to negotiate via threat and duress. “I will get the big guns out to destroy your life. I will spend our children’s entire college fund on litigation fees, just to make your life a living hell, I am THAT angry. You had better give in to me, or you will regret it.”

We can’t mediate in the shadow of threats. Just as – people can’t freely discuss their honest thoughts, ideas, feelings, if they fear later that they will be hit, for having disagreed with their (former) partners.

Becka is – intentionally or not – creating exactly what she threatens, because Josh may not be able to return to mediation.

What if Becka were instead to say, “I am really suffering, with both of us being in the house. Would you move out if I were to . . . “ and find some ways to sweeten the pot. Offer to give him some extra cash in the final settlement? Not take a piece of retirement that she would be entitled to? Offer to pay spousal support to him? Or pay his moving and set-up costs? Or offer more time with the children?

Then she would be negotiating. Mediation is about (1) coming to have a better understanding about what your ex needs, in order to move forward, and (2) reaching across the table, to offer something they want, in order to get something that you want.

Without the willingness to listen, hear, and try to understand the other person’s perspective, we cannot accomplish movement in mediation.

 

Relocation and zero-sum discussion

I am sometimes so moved by this work.  There is so much at stake, and it means so much to my clients.

Today I met with a couple. The husband is a suited-up, successful professional, who cried, when thinking about the wife moving away to a different city, with their son.

Relocation is such a painful issue. Certainly – it’s better now that we have Facetime/Skype – at least you can see your kid. My daughter is away at college, and I do feel that I miss her less, after we Skype, than I do when we just talk on the phone. Seeing her face, her expressions – makes up for something.

But – ultimately – it’s a win/lose kind of issue, because one person will get those sleepy nights, putting your kid to bed – the hanging out – with him doing homework, and you chopping veggies for salad – the watching tv together – even the hectic mornings, rushing around getting breakfast, showered, dressed – when you hear those random questions about life, when you hear about her dream, when he tells you what happened in history class. And the other parent will miss many (though not all) of those moments.

But children really do need both parents, and children don’t stop thinking about the absent parent. They might think more about the absent parent. How many books are there about teens who are obsessed with their absent parents? A lot.

My hope is that we can find the interests they have in common – that the child really does need BOTH of his parents.  Can we focus on what the mother will be able to do to encourage the relationship of the father and the child?  Summers, school holidays, the child can spend with his father.  Maybe the mother can find a place for the father to stay in the other city when he comes to visit.

 

On the Same Side?

It is a challenge, in many relationships, to communicate your needs in a way that doesn’t come across as slamming your partner. I see men who feel decimated by the woman’s criticism – when I think the woman is trying to say, “I need this, and I would like to tell you about my needs, so that we can figure out a way for you to meet them, and I will be happy, and you will be happy.”

Callie and Brandon – unmarried parents –were so united talking about their child, that it seemed like it would be the easiest mediation, why did they even need me? and then we started to talk about money, and I could see Callie feeling that Brandon is ungenerous, and Brandon feeling that he is stretched as thin as he could be and can’t pay anything towrd support, food, diapers, child-care. In discussion, they were not able to create an environment to work together, contribute to their home and child, and as soon as she spoke, he just shut down – practically rolled his eyes – saying, “here we go, whatever I do do is unnoticed, unacknowledged, and she is only focused on – what she wants.”  He didn’t hear what she was saying.

Being engrossed with one’s own actions & point of view – normal, human – but how, in a couple, to bring in the acknowledgement of the other’s actions? In mediation, we really are in this together, because we won’t have a solution unless it works for both people.

are there winners & losers?

I had a depressing mediation session today.  A session like today’s makes me realize that mediation is an opportunity.  But everyone is not able to take that opportunity.

The center of this couple’s conflicts revolve around their children.

Most couples I see fight.  But when I mention their kids, I get smiles, and proud stories of how well the children are doing – or stories about concerns for the children, and how to shield them from parental conflict – or discussion about what each child needs – but usually agreement about these things. The child is having problems, or doing really well, or needs a writing or math tutor, or could benefit from meeting with a therapist – the tale is the same, from both parents.

The families where that is not what’s going on – stand out.

This dad, Albert wants their son, Billy, to play on the travel softball team. Travel teams require a huge amount of time commitment. They usually have 2-3 games per week – and in the NYC area, with traffic, it can easily take more than an hour to get to each one of those games. In addition, the team has a couple of weekly practice sessions, and Billy is also doing private coaching. All of this, on top of school and homework, is a pretty heavy load for a 9 year old.

The mother, Andrea, has asked Billy if he wants to play on the travel soccer team, instead! Replacing the devil you know with the devil you don’t?

I have to be careful here, because I don’t want to be biased in either parent’s favor. Yes, the travel softball thing is a crazy schedule.   But – the kids who play travel sports tend to excel at sports through high school (and it can help with high school admissions (which is high-pressure in NYC, school-choice with applications, like applying to college only 4 years early), and college admissions (a girl I know recently got into Stanford because she was recruited by a sports coach.) In addition, kids on teams make friends more quickly, when entering a new school – because they have this close-knit group of other kids sharing an experience.

(Part of me feels like it’s insane and part of me wishes I had been able to manage the scheduling and put my kids on travel teams. Why I am a mediator – I can see both sides. But I digress.)

Billy is clearly aware of his parents’ conflicts. Billy told mom: “I feel like daddy won’t love me if I stop playing softball.” Andrea thinks Billy should play soccer, and applied to put him on a soccer travel team.

So – is it the travel team that is the problem? The softball playing? Or is it a power-grab – neither parent wants the kids participating in an activity picked by the other parent?

I worked with a very high-conflict couple, several years ago, as a parenting coordinator (a post-divorce process for couples who keep going back to court about their children,) and the parents actually had their 7-year-old going to 2 different dance studios and having classes and recitals at both studios, at the same time. Each of them wanted the chance to take the kid to dance class – so by golly, they each signed her up for dance classes. (They couldn’t alternate taking her? Because the need to avoid feeling like he/she LOST.)

Very dangerous, to frame things in that win/lose dichotomy. For many couples – thinking of it from the kid’s perspective can help guide the way to find the structure for the desired results.

 

Seeing People Change

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 maybe they shouldn’t have to have at their income level,) and 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?

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 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 the ongoing contention is because of them.

Can I Mediate if I’m Angry?

Anger is a normal feeling to have during a divorce. In fact, if you didn’t feel angry there would probably be something very wrong. Usually, one person has been unhappy for a period of time preceding the divorce, and was angry during this time. When that person tells the other that he or she has decided to leave the marriage, the other is in shock and has to deal with lots of emotions – sorrow, fear and certainly anger.

Whether you are the angry one or are dealing with an angry (ex) spouse, it’s never easy. Anger often builds up without your knowing it – and if you are not aware of feeling angry, the anger will cause you (or your spouse) to lash out.

Anger can be expressed in mediation and in fact, it is a valuable tool for a mediator to use to not only resolve the divorce, but also to help shape a better divorce agreement. In mediation anger is a clue that there is an important piece of information which has not yet been expressed, and which must be explored and understood. Anger tells me that someone has important needs which are not being met. When someone is angry I want to hear how they are feeling and I want to understand why they are angry. In mediation, anger gives us a key to use to shape a divorce agreement.

If you could resolve all of these problems yourselves, you probably wouldn’t be getting divorced. All couples have issues which feel overwhelming to one or both of you – which feel, as if they cannot be resolved – but that is not a fact, it is how you feel. Hopefully, you are coming to mediation to help this resolution come sooner, rather than later.

I have seen people really transformed by the mediation process from the time when they first separate, when they are full of fear and don’t know what their future will look like – and a year or so later, when all of the issues have been worked out and they have learned that they can survive and develop a new, full and satisfying life independent of their former spouse.

If the feelings are too painful, I will offer people the choice not to speak to each other directly. If someone is very angry, they may prefer to speak to me rather than to their spouse. We may need to take a break from mediation – sometimes for a few weeks – until the person starts to work through the anger and feel better. I may have some separate meetings with the angry person to help them explore their options and understand what is at the core of the anger – usually as part of a joint session in which I would also meet with the spouse to get his or her input on how to meet the needs of the angry person so that we can move through and work with the anger.

But when we use anger as a tool, it can fuel movement in mediation. I recently mediated a divorce where the husband, Bill* expressed a lot of anger during our first mediation session. He did not want to pay alimony (which in NY state is called maintenance), and he was furious that his wife, Cathy was requesting it. As we began to explore this issue, Cathy spoke about why she felt she was entitled to alimony – she said that she’d given up her career to take care of their children, and this was a joint decision they made when they had their first child. But this information did not ease his anger.

I asked Bill to tell us more about what he was feeling, and why he felt so strongly that he shouldn’t have to pay maintenance. When I assured him that Cathy would listen and not interrupt, he began to talk eloquently about how difficult this period of time had been for him – how he was living in a small apartment while his wife and children were in their spacious house – how he felt he didn’t have money to go out to dinner or go to a movie, and how he was cooped up and alone in this small apartment while she was in their beautiful home with the children.

Bill’s anger helped him to express some important needs that he had not before expressed. He felt that financially, things were very tight. He felt under a lot of pressure to be the breadwinner. He felt that Cathy didn’t understand what he was going through. He felt that he didn’t see his children enough.

Cathy was able to hear all of this during our mediation session. She responded by talking about the financial pressures she felt, too. She couldn’t buy new shoes for the children or for herself, nor could she get her hair colored. Cathy was sympathetic to her husband and was even having a similar experience.

Cathy had planned to go back to work, but after listening to Bill, she said that she realized she needed to try to find a job immediately. She said she was not at all trying to keep the children from their father, and offered to alter the schedule anytime he could get off work early to spend more time with the children.

When I helped Cathy to listen to Bill, and Bill felt heard by her, his anger began to dissipate. He acknowledged what a wonderful mother she had been to their children, and how glad he was that she’d been able to be home with the children until now, and was even able to realize that he felt sad that she wasn’t going to continue to be home with the children.

This family was able to resolve their conflict over alimony and the anger was a useful tool that helped us to accomplish this resolution. Once Cathy began to plan to go back to work, Bill relaxed about the issue of alimony. Because they were both having the same experience about money, the discussion shifted. Instead of the problem being whether Cathy would take money from Bill, we instead confronted a shared problem – how to have more money in the family?

 (I told the couple about tax implications – money paid for child support is not deductible, but money paid for maintenance IS deductible. Suddenly, Bill’s eyes lit up. He realized that if he paid alimony to Cathy, and she used it to run the household, they would both end up in lower tax brackets, thereby resulting in a net tax savings.) Note:  This law changed Jan. 2019 – alimony is no longer deductible to payor under federal law, though it’s still deductible under NY state law.

We ended the session talking about how much and how long he should pay Cathy maintenance, instead of whether he would give it to her.

Sometimes anger cannot be so easily resolved. Many fights are caused by disappointed expectations. But no one gets married expecting to divorce – disappointed expectations are painful to swallow – but are to be expected during a divorce.

If you feel overwhelmed by the feelings of your divorce, do not be afraid to seek help. Get some additional support in your life – consider seeing a therapist for a period of time. The more support you get, the faster you will get through this and come out the other side. You WILL find your way through all of these difficult changes. Someday you will look back on this and find that there are ways that it made you stronger.