Month: April 2013

We are divorcing but we aren’t ready to sell the house…

There are times when couples choose to own real estate together even though they are divorcing.  Usually it is the marital residence which they chose to keep.  It is important that they understand some basic real estate issues in order to make decisions on how they should own the property in order to meet their expectations if one of them die while the property is jointly owned.

In New York State, the majority of married couples own their homes as Tenants by the Entirety.  To create a tenancy by the entirety, the deed transferring the property to a married couple must name them as Tom Doe and Natasha Doe, “husband and wife”, or “tenants by the entirety”, or even “his wife”.  Once the tenancy by the entirety is created, if one spouse dies, the other spouse is automatically the owner of the entire property.  Even if the magical words are missing, it presumed a married couple owns a property as tenants by the entirety.

The important fact to remember is that only a married couple can own property as tenants by the entirety.  Once the divorce is finalized, the tenancy by the entirety is dissolved.  Under New York State law, unless other steps are taken, the divorced couple becomes Tenants in Common.  The consequences are significant.  Tenants in Common each have a percentage ownership in the property.   Either owner can transfer his or her share to a third party.  No permission from the other owner is needed.  Absent an agreement to the contrary, either tenant in common is entitled to live in the property.  There is basically no requirement that costs to maintain the property be shared and there is definitely no requirement the costs of improving the property be shared. Equally as problematic is that upon the death of one owner, their percentage share goes through their estate.  Either their will or if no will exists, the laws of intestate succession dictate who will become the new Tenant in Common.  The horror story most often told is when the first wife and husband own the marital residence as tenants in common and then years later, the husband dies leaving his entire worldly estate to his new wife.  The result is his two wives now own the first wife’s home as Tenants in Common. While I have yet to meet someone who actually had clients involved in this scenario, the story could easily be true.

The parties may choose different options to address the problem of Tenancy by the Entirety converting to a Tenancy in Common.  The memorandum of understanding should set forth the intention of the parties and their course of action to achieve their desired outcome.  One choice is to have the deceased spouse’s share to go to a specific party or group.  Some examples are the couples’ children, their grandchildren, or someone else both owners desire to have a share in the ownership of the property.  Another choice is to have the deceased spouse’s share go to the surviving spouse.  This option can be secured through an agreement that each spouse will prepare a will which sets forth the required alternative.  Many attorneys prefer another solution. They have the parties deed the property to themselves as Joint Tenants with Rights of Survivorship.  This type of ownership functions just like the Tenancy by the Entirety but without the requirement the parties be husband and wife.  The new deed will list the parties   “as joint tenants with rights of survivorship”.  From that point on, if one party dies, the other party owns the entire property.

While the couple can do the research to determine the options they believe they should pursue, it is important they discuss with their attorneys and their accountants to be sure they fully understand their choices and then to be sure they complete whatever option they choose correctly to avoid problems in the future.

To Divorce or Not to Divorce, that is the question?

What a loaded question filled with so many questions and uncertainties. But, many of us ask, should I get a divorce or not?

It may be a question you have been considering for years, or it may be a relatively new thought. Whatever your thought process has been, it is not one to be taken lightly. Many decisions have to be made and impacts to be considered, but my philosophy has always been, “A good divorce is better than a bad marriage.” I chose to divorce years ago, because it was the right decision for me and my family. However, it is a very personal decision that is very specific to each individual family and situation.

Your personal philosophy on divorce (or separation) is unique to you. You may be conflicted on the best thing to do, especially if you have children. Many people feel that to stay together for the children, no matter the state of the marriage, is the best thing to do. While others believe the opposite, that children will be better off if their parents choose to end an unhappy marriage. If there are no children in your marriage, you still must weigh the impact of divorce and separation. What are your religious beliefs? Social impacts? Financial consequences? Marriage and Divorce are processes that affect our family and loved ones, as well as those around us.

I cannot answer whether divorce or separation is right for you. You must decide that for yourself and decide in what environment you want to raise your children, look at what influences you (church, family, friends) and consider your options. Ask yourself how you can be happy, what is important to you  and be the best person/parent you can be.

Mediation helps couples who have answered the question to divorce or separate and are ready to begin the process, as well as helping couples who don’t know the answer and would like to try marital mediation to work on issues in their relationship. Mediation offers you options and a process that is private, confidential and effective.

Most people do not listen

“Most people do not listen with the intent to understand; they listen with the intent to reply.”—Stephen R. Covey

Think back to your recent conversations. How many times have you listened to your friend, co-worker or family member talk, all the while formulating your response?

As your good friend speaks about her latest frustration with her husband, are you readying an empathetic reply, all set to agree what a lousy thing her husband did? As your teen expresses anger over not being allowed to do something ‘everybody else’ does, are you rehearsing your defensive ‘we’ve got our own rules’ response? As your co-worker worries about an upcoming project deadline, have you already pro-actively thought of five ways she could improve her chances of meeting that deadline?

You may have the best of intentions when doing this, but you are cheating the person you are listening to at the same time. When people are speaking with you, the most validating thing you can do is to give them your full attention. Hold eye contact with them. Listen quietly without interrupting until they are finished. Don’t be afraid of not having an instant answer—did they even ask you a question? A few moments of silent reflection on their words is ok! It shows that you heard what they were saying, value their thoughts, and are open to what they need and want from you, if anything, beyond listening.

One way we can show that we were truly with them when they were speaking is to reflect back to them what they said. Restate what they said, using some of their own words: “So you felt that Dan was not following through on agreements you made to share the work of keeping the house clean.” Name the emotion they had as they spoke: “It sounds like you are feeling untrusted, and that makes you angry.” “Your deadline is next week, and you’re worried you won’t be ready.” Ask them if you understood them correctly.

Then gage whether or not they want your judgment, ideas or sympathy. If they do, this is a great time for that part of the conversation—when someone feels really heard by you, they are the most open for constructive dialogue.

 

 

Why is S/he Being So Unreasonable? It may be all in his/her brain…

Heart and BrainWhen people are in stressful situations, the body cannot distinguish between real and perceived threat. The greater the perception of threat, the stronger the biological response is likely to be. This is particularly true if the current threat is tied to a previously stressful or dangerous situation which triggers the memory center of the brain.

Under acute stress (also known as the fight-or-flight response) the body’s sympathetic nervous system is activated by the sudden release of hormones. This triggers what Goleman (1996) dubbed the “Amygdala Hijack” whereby the rational brain is literally shut down. An amygdala hijack exhibits three signs: strong emotional reaction, sudden onset, and post-episode realization if the reaction was inappropriate.

While it takes the body 20 to 60 minutes to recover from the fight or flight response, the brain recovers in as little as six seconds. However, the same response can be re-triggered, sometimes by the person thinking about the same situation. It is therefore important to break the cycle.

What to do?

Show Empathy: Empathy, unlike sympathy, is not saying “gee, I feel sorry for you.” It is demonstrating that you “get” how the other person feels because you can imagine yourself feeling the same way in a similar situation. You can powerfully demonstrate empathy by giving the person your undivided attention. Turn toward them and face them, match their energy level, and use appropriate facial expressions.

Reflect What You Hear: Because there is no way to access the reasoning part of the brain, don’t try. Instead mirror what the person is saying as closely as possible in their own words. Don’t paraphrase or take any ownership or exhibit any agreement. Simply state back way you are hearing starting with the words “So you…” or “You are feeling… because….” Eventually, the person will calm down and you can then start to talk tentatively about what you need to accomplish.

Work with a Mediator: It can be hard to try to do this on your own, which is why working with a mediator can be a great way to make progress. The mediator can manage the strong emotions and conflict so you can both get your needs met.

 

Source: Emotional Intelligence: Why It Can Matter More Than IQ. Goleman, D. (1996), USA: Random House Publishing Group