Month: November 2014

Should I leave my life insurance to my kids? NO!

http://www.dreamstime.com/stock-photography-big-piggy-talking-to-little-piggies-image27609912Many of my divorcing clients think the easiest thing to do is to simply change their beneficiary designation from their spouse to their children, but leaving money directly to minors means they may be left without the funds needed for their care, which is the whole point of life insurance in the first place, right? So what should you do?

First, don’t change anything until all of your agreements are in place and legally documented. Making changes sooner could cause trouble if you are unable to mediate and end up in litigation.

Second, think about which option would work best for you and your children if you weren’t here. There are several choices.

Leave your former spouse as the beneficiary  This, obviously, requires no effort on your part if you trust your former spouse to use the funds appropriately to care for the children. However, if your former spouse remarries and you die, and your former spouse subsequently dies, the funds would likely pass to the new spouse as a part of your former spouse’s estate.

Uniform Transfers to Minors Act  A parent can establish an UTMA account for the minor through a bank, financial institution or insurance company, name it as the beneficiary of the life insurance policy funds, and name a custodian (often your former spouse who knows the needs of the children) who will manage the funds for the children until they reach emancipation at which time they gain complete control of the funds.

Establish a trust  A trust allows for even more control. Written by an attorney, the trust can be named as the beneficiary of the life insurance policy and once funded, a trustee can be named (again, often the surviving parent), and trust language can define how funds are to be used and distributed, as well as the age at which your children will gain direct access to the funds. If you have a child with special needs, it is important to work with an attorney with experience in creating special needs trusts to ensure your child’s benefits are not negatively impacted by inheritance.

Finally, whatever you decide, be sure that your beneficiary designation on the policy itself aligns with your wishes. Simply indicating in your will what you want will not work and could cause delay and expense in carrying out your final wishes.

Your mediator can help you and your spouse to talk through the many important decisions needed to be made when divorcing.  For more information contact The Mediation Center at 585-244-2444 or email info@mediationctr.com.

A Marriage Myth: Marriage is Obsolete

Heart and handsIt may seem that marriage rates in America are down and more people are opting to live together rather than get married. But, things are not always as they appear.

People are delaying marriage longer than ever (average age at first marriage is now about 27 for women and 29 for men), so, it might seem that the institution is on the way out. But marriage is still important to young people and is now a real option for same sex couples as well.

The National Longitudinal Study of Adolescent Health found that 55 percent of women and 47 percent of men said marriage was a “very important” part of their life plans. Another 29 percent of women and 35 percent of men said it was “somewhat important.”

Only 12 percent of women and 13 percent of men ranked marriage as “not very important,” and a measly 5 percent of each gender said it wasn’t important at all. By 25, 33 percent of women and 29 percent of men had already gotten married; another 30 percent of women and 19 percent of men said they wished they were hitched.

Marriage has a certain wonderful romantic place in our society and in our hearts, especially for women. Girls dream of the flowing white dress with her beloved waiting for her at the end of the aisle. We think of churches with flowers and all of our family and friends, or a beautiful pristine beach with the blue water as a backdrop for your “I do’s”. Or maybe your dream is to be on top of a mountain or in the backyard of your childhood home.

Whatever the dream you have for your wedding, it includes all the romantic notions and lead up to the big day. There is the engagement and the ring, the parties to celebrate, the bridal party and wardrobe, the wedding registry, finding the perfect dress or look, arranging the venue and food, selecting the music and decorations and the guest list. And of course, tastings for finding the most delicious cake! Even if you elope and it is just the two of you there still remains a nostalgic romance for just the two of you.

Marriage and its definition has transformed through the years, however, marriage still plays a huge role in American culture and is an institution that remains strong as well as ever changing. We all have different values and ideas of what a marriage should be. We need to embrace changes and what works for all of us individually to make it our own.

Parenting Your Children After Divorce

Divorce and child custody“What children of divorce most want and need is to maintain healthy and strong relationships with both of their parents, and to be shielded from their parents’ conflicts. Some parents, however, in an effort to bolster their parental identity, create an expectation that children choose sides. In more extreme situations, they foster the child’s rejection of the other parent. In the most extreme cases, children are manipulated by one parent to hate the other, despite children’s innate desire to love and be loved by both their parents.”

Excerpt from The Impact of Parental Alienation on Children Published on April 24, 2013 by Edward Kruk, Ph.D. in Co-Parenting After Divorce

Experts recognize the benefit of Children continuing to have loving relationships with both parents after a divorce. This continuation of (or even the beginning of more involved) parental relationships is a key factor in the security and happiness of children after divorce, who often have complex concerns about their futures. Some of their concerns arise when children fear that one or both parents don’t love them anymore, and worry they will be abandoned, just as they have witnessed the parent’s love for each other go away. Children may feel responsible for the divorce, especially if parenting styles have been a cause of conflict between the couple. Children see themselves as a part of each parent, so negative words or actions directed at one parent by the other have the effect of hurting the children as well.

It is the relationship with your spouse or partner that you are ending. As hard as it is when you may be feeling a lot of negative emotion towards your soon-to-be-Ex, it is important for you to separate those feelings from your parenting responsibilities. Take care not to involve your children in adult issues that they can’t understand. Your children need both of you in the time of divorce, and if you find you can’t get past your feelings about your spouse or partner, reach out to professional help that is available through school counselors, family and child therapists, religious leaders, divorce coaches and support groups.

Mediating your divorce at The Mediation Center provides the opportunity for you to create two separate but comparable households where your children will share time with each parent, with routines set through a parenting schedule that truly works in the best interest of the children. Your agreement addresses the financial concerns of each household, and the process also helps you continue to communicate and work together to the best of your ability, which will be key in parenting your children together in a way that helps them recover from the divorce. To set up a consultation with a mediator, call 585-244-2444.

Dividing Retirement Assets


Nest Egg

DIVIDING RETIREMENT ASSETS – Getting it RIGHT so you can get it WRITTEN.

Dividing retirement assets is an important issue for couples entering the process of separation and divorce. Retirement assets are often the most valuable marital assets a couple has along with their marital residence. Whether the couple is in mediation, using Collaborative Law, or negotiating in a traditional litigation model the first step is to gather all the information that is available about each asset before negotiating.  It is very important to get all the details associated with each asset so they can be discussed and decisions can be made with full disclosure and informed consent.  Once the parties have decided how they will be dividing retirement assets, a qualified domestic relations order (QDRO) or a Domestic Relations Order (DRO) will be required to distribute the asset without tax and penalty associated with the transfer (with the exception of IRA transfers).

There are different types of retirement assets including Defined Benefit Plans (often known as Pensions), Defined Contribution Plans- 401(k)’s 403(b)’s, Individual Retirement Accounts (IRA’s), Deferred Compensation Plan’s, Profit Sharing Plans, Cash Benefit Plans, etc.  It is important for the couple to understand what kind of assets/benefits they each own, and the specifics about each asset.  They should be prepared to provide information to the attorneys or mediators with whom they are working.  This will help to determine if an asset is marital, or if some of it is separate property.  Once the asset has been property classified and all of the information about the benefit has been obtained then the parties can negotiate the division of the asset.

When one or both of the parties has a Defined Benefit plan (Pension), then the Summary Plan Description (SPD) for that plan should be obtained by that party and reviewed by the professionals working with the parties.  That SPD  contains the information and options related to the pension benefit.  It is also important to obtain the employment history for the participant including any breaks in service and find out if there are any prior QDRO’s related to the pension.

When one or both parties has a defined contribution plan(s) such as 401(k), IRA, Profit-Sharing, etc., then the parties should obtain the most recent Account Statements- quarterly, semi-annual, or annual and any other documents describing the type of account and account options.

The best practice for negotiating the division retirement assets is to get ALL the information BEFORE negotiating the agreement.  Detailed instructions related to the division of the assets must be included in the final settlement or separation agreement so that the ORDER, QDRO, DRO, or Divorce Decree can be accurately drafted to accomplish the intent of the parties.  If the settlement/separation agreement does not contain the correct language and particularly if it is silent as to survivor benefits those benefits cannot be subsequently drafted into the domestic relations order.  The bottom line is – GET IT RIGHT  in your settlement so you can GET IT WRITTEN in to the final Order which will distribute the retirement asset.

[author_info]Julie V Mersereau, Esq. is a Divorce Mediator and Collaborative Law Attorney serving the greater Rochester New York area. Contact Julie at 585-377-5487, or julie@jmersereaulaw.com[/author_info]

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