When people use the terms ‘sole custody’ or ‘joint custody’ what do they mean? I’ve found when people say they want sole custody, what they mean might not be what I mean, when using the term. In the context of a contested divorce, versus an uncontested divorce, they might mean they want their child to be with them full-time or they might be talking about who has the authority to make decisions about the child. There are two components of custody in New York: physical custody (also called residential custody), which is the schedule of the child for going back and forth between the parents’ homes (parenting time) and legal custody, which is the authority to make decisions for the child. Legal custody would apply only to major decisions that have long term effect on the child, such as religious education, choice of school and medical decisions. This wouldn’t apply to day-to-day decisions; Can I have a sleepover at Bo’s house on Saturday? Can I have candy after school? I had a case where the parents were fighting bitterly over sole custody. As it turned out no one had asked them what they meant by sole custody. One parent wanted the kids every other weekend because they were in middle school and high school and were busy all week with school and after-school activities. They wanted to be involved in making decisions. The other parent wanted the kids to spend weeknights in one home, to have consistent routines for getting ready for school, and every other weekend with each parent, and was happy for the co-parent to have sole decision making around medical questions, as they were a doctor, and shared decision making about everything else. It turned out that both parents could have what they wanted with sole custody.
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A lot of parents don’t know how to navigate a conversation with their kids about their separation or divorce. I want to share some rules and guidelines... “We told our teenager on Monday that we're separating. I'm uncertain how to have read the expression on her face… maybe shock or disbelief. We've had so many years of conflict, it’s hard to believe she's surprised. It unnerved me. We went shopping on Tuesday and had a nice day, had 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 our child why this happened, so she understands, but I don’t want to play the blame game. I can’t be completely honest, so I think she's confused and I'm getting stressed.” "I don’t feel grounded when my ex is around, I'm sad and angry. Sad about the loss and doing this to our child, when she's getting ready to go to college. Everyone's putting on their happy face but it's confusing.” My Advice: It’s always amazing how much kids can be in their own heads and not notice things going on around them. We can think they know/sense what's going on between adults but they often don't or don't recognize yet, what it is they're seeing. Good rules to live by: Let the child ask the questions. Don’t bring it up or volunteer information, other than what is being asked for. Be open and answer all your child’s questions while following the rest of these rules. Remember psychologically/unconsciously children feel that they're half their mother and half their father, so if someone says, "Your dad's lazy", they hear it as, "Half of me is lazy." This can help to guide you to avoid the blame-game when answering their questions. Remind the child that she/he didn’t do anything to cause this. Because of the way our brain develops, it's important to reassure children that they are not to blame. In my experience, deep down children know the truth of their parents’ divorce. They know both of you, inside and out and over the next 20 or so years they'll ask more questions. Breathe. There's time. Finding that balance between feeling you're being your authentic self and protecting the child can be challenging. Remember she/he doesn’t need, nor want details that you might find important. It’s the end of a long relationship and very normal to have mixed and complicated feelings, for all of you. If you’re feeling sad, you’re allowed to tell your child that. However, it's best to keep the complaining to your friends and your therapist, not to your kids.
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Some couples who come to mediation are high conflict. No matter what they’re discussing, they take extreme positions. His position, he wants to pay zero. Her position, she wants 100. In many situations the cycle of fighting is covering underlying issues. All each person wants is for the other to understand their thoughts/needs/views. When we’re rigidly taking a stance unwilling to consider other options, negotiations are difficult, especially when children are involved. But people can change. One couple took a break from mediation as it was so full of conflict. When they returned, whenever the husband was argumentative, the wife would pause for a few seconds and then respond, not by telling him how wrong he was, but instead stating why she needed what she needed. After the session I asked her about this new behavior and she explained that she’d been learning how to self regulate. She knew their old way of communicating or not communicating, was hindering them moving forward, so decided to find a different way to deal with the situation. We were able to move forward with the mediation and they were each able to move into new chapters of their lives.
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Is mediation or collaborative divorce the right fit for you? After you've decided that you're going to separate, the first questions you want to answer are: 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 it. 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 allows 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. Collaborative divorce is right for you if: You would like to have your attorney present to help you to advocate for yourself. You're 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. Your finances are very complicated, e.g. 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). You would like to invite other experts, who would act as neutrals, to be part of the process, such as a child specialist or divorce financial planner. 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 allows 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. 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. Mediation v. Collaborative Fees: 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. 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.
1. Faster Path to Closure: You may have been wronged but getting stuck in conflict and seeking revenge will only keep you thinking, reliving and tallying up those hurts. The goal of mediation is to resolve this part of your life so that you can move forward to your new, hopefully happier future, without the conflicts of the past. Let them go! 2. 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 find ways that the future structure can work for both of you. 3. Control: Mediation allows you to have complete control over the process: You won’t agree to anything until you're ready to agree. Which means, the agreement isn't ready till it meets your needs. You schedule appointments on your time-frame. You can take as much time between meetings as needed, to gather information, consider proposals, run it by those you trust. 4. Private: Mediation is private and confidential, so that you can frankly discuss cash income, addiction, infidelity and any other sensitive issues. 5. 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. 6. Shared History: You will always have shared your years together. Even though you're 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. 7. 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 children together, you'll 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. 8. Reasons People Choose Mediation (quotes from clients): Either we solve it together 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, 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
A neutral mediator is key to the mediation process. This neutrality in the mediator can help heal the pain of divorce and increase understanding. It's never simple to determine why a marriage ends. The end of the marriage takes two, as does the beginning. My challenge as a mediator is how to understand and empathize with both people. Take this situation for example: *Brad and Helen have come into my office. Brad went out to get a newspaper one Sunday morning and didn't come back or call for 3 days. He left Helen with 2 young children and no note. I could imagine her anguish and the children’s fears. However, during our sessions Helen never let Brad speak. What he did wasn't right but something drove him to do it. His experience led him to the decision and both experiences are vital to understanding what is at play. What is my role as a neutral mediator? Most of us are doing our best to make our way through life. We try not to hurt the people we love or have loved but we're imperfect creatures, so we don't always succeed. We're hurt and we lash out and the other may not know that he/she has hurt us. Through my understanding as a mediator, I can often help people to forgive themselves and each other, which will help them to move forward into their new lives post divorce. Divorce raises hurdles, as you restructure and begin to figure out your new life. It also raises complex emotions. Mediation is a good place to explore these changes. When you're navigating the maze, the last thing you want to hear is that your spouse’s position has more validity. These feelings are especially intense where the impetus for the breakup of the marriage is a situation with deep emotional effect. For example, where one person has a new lover, or where one person walked out very suddenly and without warning. The identity as a wronged person becomes compelling and attractive. In mediation we focus on a broader picture. A neutral mediator can bring you closer to the truth, and the truth will help you to move on with your life. An in depth example of how mediation & neutrality work in action: *Anice and Marshall came to me for divorce mediation. Anice expressed her thoughts clearly. She loved Marshall passionately and still believed that he was the love of her life. She'd made a commitment to him which, to her, meant that she would stay with him no matter what. She told me that Marshall had had other affairs in the past and had always returned to his commitment to her. “How do I know that this time you're serious?” she asked him. “What makes you think that 3 months from now you won’t change your mind again and come back to me?” The couple had recently purchased a house. Anice asked, “Why did you buy this house with me if you wanted to get out of the relationship?” The couple had greatly disparate incomes and although Anice had been the motivating force behind their buying their home, she wasn't at the present time able to figure out how to pay the expenses of the house by herself. I could have felt that Anice was “right and Marshall, a lousy toad. She was the one with commitment and vision, she felt sure that this marriage was the right thing and was able to stick with her husband through thick and thin. She planned and worked to enable them to buy a home and after this loyalty, what was her reward? Constant betrayal, multiple affairs. Then Marshall told me about his experience. He spoke eloquently about his need to move on from a relationship which felt stagnant to him and from which he could no longer derive any sense of intimacy or romance. He was very grateful to Anice for all the love and support she'd given him and the achievements he'd accomplished because of her support. However, for a long time he had felt there was something missing. This feeling drove him to seek outside relationships, even though he had derived from Anice love such as he had never before experienced in his life. At the present time, he felt stifled by the relationship. He felt responsible for Anise. He was aware that she wasn’t able to earn as much money as him and he felt trapped. Although he felt platonic love and respect for Anice, he had a new girlfriend. For Marshall, the 12-year relationship had evolved into a friendship. After hearing Marshall, I felt his pain. I felt how Anice’s willingness to stay in a relationship with a man who was sleeping with another woman made Marshall feel trapped. He saw her as a crazy woman who had no self respect, who would live with him even though he rejected her. In truth, I felt great empathy for both Anice and Marshall. Through my understanding of them, I was able to sympathize with Anice, who felt deeply committed to this man and hurt every time he told her that he still loved her and who felt that she would have stayed with him no matter what happened, even if he had outside relationships. I felt empathy for Marshall, who expressed that this marriage, though it had endured for 12 years, had never completely fulfilled him. He felt an excitement at the change to break free and try again in a new relationship for something that felt more healthy and fulfilling and less co-dependent and suffocating than his relationship with Anise. My job now was to do my best to increase their understanding of each other. Marshall had a better understanding of how Anice felt than she had of his point of view. Once understanding is improved, they would be ready to negotiate the fairest way for them to divide their house and their possessions. Anise had to confront the reality that Marshall wanted a divorce. When I helped her to accept this, she was able to negotiate alimony for a period of time, so that she could keep the house and eventually become self-sufficient. Marshall saw the alimony as a way to buy his freedom and it was a great relief to him to be able to do that. They were both satisfied with the terms and their divorce agreement was completed. Another example of Neutrality: Children perceive their parents neutrally during a divorce. As much as you might want your child to side with you against the other parent, it won’t happen and it shouldn’t happen. A child will never thank you for taking away his mother or father. The children each contain a little bit of each parent, and they're able intuitively to understand both parents’ points of view. The children understand the limitations and strengths of both their parents and love them. I can think of many cases where I had deep empathy with both people, and could see both their sides. I had a case where the marriage was breaking up because the woman was a lesbian. I empathized with the husband, *Allen, who, in his early 50’s had to leave his beautiful house. He had to rethink his whole life with Marge, in light of these changes in her outlook. He had believed he’d had an OK marriage. He didn’t want a new life but the old one had been snatched from him. Marge was able to communicate to me the excitement and liberation she felt as she embarked on her new life. She showed me that something had always felt wrong in her life and now, for the first time she didn’t have that feeling. Marge came to mediation believing she'd embarked on a course of self-discovery. During our sessions she came to a new understanding of how this journey had affected Allen. She ended up giving him a more generous financial settlement, partly to assuage her guilt and partly to help Allen to also feel that he was getting an opportunity to embark on a new life that might hold some promise, excitement, even happiness not present in their old one. The truth is it's never simple to determine why a marriage ends. Something was probably always lacking in Allen and Marge’s marriage. Why didn’t Allen see that? Why didn’t Marge know earlier? The end of the marriage is created by both, as the beginning was created by both. My challenge is to understand both people.
Many people don’t know that about 98% of contested divorce and family court cases never appear before a judge in a trial and are settled by their attorneys out of court. The parties may meet the judge in a hearing or settlement conference (where you go into the judge’s chambers and get scolded for not reaching an agreement), but the judge will rarely, if ever, make decisions at time. For the most part, judges hate making decisions for families. Even though it's their job to do so, they can't give up hope that parents will find their higher selves and work out their issues around parenting. Most people prefer to make decisions for their kids rather than have a stranger in black robes tell them how to parent. After all, it doesn't matter to the judge if you want your kid to study ballet, play soccer, take piano, French or tennis lessons, but it probably matters quite a lot to you. Even around finances, which are thought to involve less emotion (though I question that) judges will want to defer to a divorce financial analyst or financial expert. The reality is that our court system is so backed up and slow to come to decisions, that attorneys at some point get real with each other and say 'look, you know what you're asking is not reasonable,’ and a compromise begins. As a trained mediator and collaborative attorney, I can be the first step, so your settlement negotiations involve focusing on your underlying interests and finding solutions that work for both of you and your kids.
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Sometimes people think they need a prenup to keep property that they own now, separate, in case of divorce, but everything 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 are your premarital assets and debt, so that there is no confusion down the road. Debt 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. 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 of $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.
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