Category: divorce mediation

“Mediation Won’t Work Because We Can’t Talk”

CommunicationSome couples who decide to end their marriage or partnership stopped communicating effectively with each other a long time ago. Many things can cause this to happen: different communication styles, a power imbalance in the relationship, lack of problem-solving skills and loss of interest or respect are a few.

When couples that want to separate or divorce consider the process that is best for their family, they may be afraid that they won’t be able to work together to make decisions for their separation or divorce agreement. Our mediators are trained and experienced in working with couples in conflict. Mediators facilitate your conversations and create a safe place for each of you to advocate for yourself. They help you clarify your thoughts and feelings on a topic, and assist you in discussing them in a way that your partner or spouse can listen and understand you.

We have seen over and over that couples that mediate may not be communicating well at the beginning of the process, but as they work with the mediator, good communication and understanding returns. They are able to successfully create fair agreements that give each person the opportunity to move forward in the best way possible. For parents of minor children, this allows them to regain confidence in their ability to continue to work together effectively to co-parenting their children in the future.

What is “normal” and what is abusive in a relationship?

By now everyone has probably heard the tale of the frog placed in the pot of water and set on the stove. Gradually the heat is turned up. The frog makes no attempt to get out of the pot. Because the temperature increases gradually, the frog doesn’t notice and thinks it is normal.

Relationships can be a lot like that. Sometimes, we start out happy, then gradually things deteriorate. As it happens slowly, over a period of time, we fail to notice the impact it is having on our mental and physical health. If we do experience discomfort from time to time we may excuse it away… this happens to everyone, it’s normal.

So, what’s the difference between normal and abusive?

In any relationship, it is pretty common for the honeymoon to wear off. Things like bills, cleaning, and children can get in the way of romance. Yet, in a healthy relationship, there is a sense of teamwork, shared responsibility, partnership toward common goals. We might feel tired from the effort, yet we also often feel appreciated for what we contribute and are compensating through things like companionship and fun. It’s not all peaches and cream. We disagree from time to time and may even stomp off mad or raise our voices, but when troubles come, we work together to find solutions. Or, if the relationship needs to end, difficult as it may be, we are able to do so.

In an abusive relationship it is not uncommon for things to start out really strong–maybe  even a little bit too strong. Nothing and no one is perfect, yet it can often seem just too good to be true. When a problem arises (as they always do in life), in an abusive relationship there will only be one person held responsible and that will be you. Often you will be punished for your perceived transgression–bullied, excluded, demeaned, isolated, physically harmed. Your partner is in control, and s/he expands their control whenever possible, while you are left to walk on eggshells hoping not to upset them. Sometimes, they will apologize. They may even give you a gift or some sign of recognition. They may promise you it won’t ever happen again or beg you not to leave or tell anyone. Yet, it does happen again. And often, over time, it gets worse. If you want to end the relationship, you will likely be threatened or worse.

Because abuse (verbal/emotional, physical, sexual, economic, psychological) can happen infrequently or gradually increase, it can seem like it’s not real or it’s bound to get better. We can all do a better job of learning to manage conflict in our interpersonal relationships, but it is important to know that the usual tools won’t work within the dynamics of an abusive relationship.

If you are in an abusive relationship, it can feel overwhelming to even contemplate taking steps to leave. You are not alone. Others have also been where you are. It is not your fault (even if you are being told it is). There is support available. If you are experiencing abuse or just want to know more, you can call the National Domestic Violence Hotline today at 1−800−799−7233 or TTY 1−800−787−3224 or visit their site at http://www.thehotline.org/. Or contact a local provider such as Willow Domestic Violence Center at 585-232-5200.

 

Holding On To Your Goals In Separation and Divorce Mediation

 

What is mediation 2 d-sYou are in a stressful state as you navigate the choppy waters of divorce. Focusing on the shore can keep you headed in the direction you want for your future. There are three main components to any separation or divorce: the financial one, the emotional one and the legal one. The key to getting the best possible outcome for your future is to keep your emotions from interfering with the legal and financial aspects of your process.

To ease conflict and create a collaborative atmosphere during your separation or divorce, it is important to keep your interactions with your soon-to-be-ex businesslike. Don’t let yourself get drawn into an emotional argument. You have a choice in how you respond to your spouse or partner’s negative emotions. Be responsible for your interactions with them, and try to keep them positive.

During the divorce or separation process you will experience all kinds of strong feelings. That’s completely normal. The key is to only engage with your spouse or partner when you can think and speak from a practical mindset. You can do this by staying focused on your future, and the goals you have for getting there. If you find you are getting drawn into an argument, simply say that you will get back to them later. You may need to avoid talking to them about the decisions that go into your agreement outside of your mediator’s office. Sometimes it takes the mediator’s help for the two of you to have an effective conversation.

Remember that having clearly defined goals that you are working towards will help you manage your interactions, and end up with the best possible outcome.

 

What’s a BATNA and why do I need one?

Hands Holding Negotiation Multicoloured Word ConceptThe “Best Alternative To a Negotiated Agreement” a.k.a. BATNA.

Why do you need one? If you are preparing to negotiate and you don’t know your alternatives you are more likely to agree to something you could regret.

Here’s a common example. You decide it’s time to replace your car, start looking at cars, and a salesperson approaches you. Her interest is to make a sale today for the most money possible. If you haven’t researched your options, you’re likely to spend too much money and make a choice you later regret.

So, how do you determine your BATNA?

First, brainstorm as many options as you can–don’t limit yourself. If you are negotiating support, alternatives to getting or paying the full formula include sharing additional costs like cell phones for the kids, paying a smaller or larger amount of educational costs, having your spouse pay fully or paying fully for health insurance for the children,  decreasing monthly costs like cable television, increasing income from other source, etc.

Next, narrow your options to those you would actually consider. It’s always better to have more than one BATNA if possible. It encourages you to negotiate assertively and get your needs met.

Then, gather quality information about the options you’ve selected. The more you know, the more confident and empowered you will feel to make good choices. Seek advice, read and research. Good information makes it less likely you will be persuaded to make a poor choice.

I say quality because opinions are just that–personal beliefs. I’m amazed how many times mediation clients say, “well my best friend told me…” as if it were fact. If their best friend is an attorney giving advice on the law, I might give it some weight, but if Fred simply had a bitter divorce, he’s not an expert.

Finally, give some consideration to your range and your bottom line. We all make trade-offs in negotiation and in life. I might be willing to pay a little more if I can get heated seats in my new car. But I also know if the price goes above a certain point or the dealer tries to talk me into a financing option I am not comfortable with, I need to walk away.

And above all, don’t forget to take the other person’s perspective into consideration. You’re more likely to succeed in a negotiation if both parties interests are fulfilled.

If you need help negotiating with someone else, a mediator can help by offering a structured process that surfaces the interests and needs of both parties.

Do It Yourself Divorce

DIY - Do It Yourself Colorful Blocks

DO IT YOURSELF DIVORCE-  You’ve seen it online when you search for information about divorce, it’s even on some court websites.  DIY may work for your basic home improvement projects, but when it comes to separating from your spouse or partner it is not likely to be the best choice or even the least expensive choice.  There are so many factors and interests to balance as you make decisions about what will be in your best interest and your children’s best interest that it is difficult get it right without some assistance from a professional. Decisions you make regarding Child Support, Spousal Support, Property Division, and Parenting will affect you and your children for years.

How often have your attempted that home improvement project and realized you were in over your head and had to get the plumber, electrician, or contractor in to fix it?  You end up spending more money than if you had called the professional in the first place.  If you try to handle your own separation or divorce the outcome can impact your ability to pay your bills, keep a roof over your head, pay for your kid’s college and even your ability to maintain a relationship with your children.  You will spend thousands of dollars trying to undo your mistake.

If you are trying to keep your expenses down for your divorce or separation call a Professional Divorce Mediator.  A mediator will assist you with communicating with your spouse and negotiating a reasonable lasting agreement that will meet your needs now and in the future without having to go to court.  You can make your own decisions with the information and knowledge shared by the mediator so you get it right the first time.  As an attorney I have seen many DIY divorces be rejected by the court.  The parties are then have to figure out how to fix their mistakes.  They often have to get an attorney to repair the divorce papers, which can cost more than getting it right the first time with a mediated agreement and attorney assisted uncontested divorce filing.  You can find more information on mediation at www.mediationctr.com;   or at my website www.jmersereaulaw.com.

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Can we mediate?

Why mediate homepg #406B779It is a common question I have heard over the years. One or both people in the couple shares a concern about their partner’s unwillingness to talk outside of sessions, the guilt they may be feeling about deciding to leave the relationship, their or their spouse’s anger, the advice they’ve been getting from well-meaning family and friends. Is it really possible, they wonder, under these circumstances to mediate?

My answer is probably. Mediation is voluntary, so even if a couple begins mediating and one or both decide to stop, they have at least tried to sit together to resolve the issues that need to be decided. At worst, they will have gained clarity about what they want and their partner’s goals. Yet, in my experience, most couples who begin mediating are able to complete mediation.

Fears or concerns the couple had coming in are often managed as a part of the process. For example, not talking before a mediation session (or even between sessions) is often a result of fear. One of the parties may be concerned that if they discuss things directly, it will get out of control and conflict will erupt. Especially if there are children in the house, this person may just want to avoid potentially exposing the children to parental strife. Inside a session, the mediator can help facilitate conversations and manage emotion, allowing both partners to open up and feel safer talking through the issues that need to be explored.

I have seen so many families work through difficult times and reach agreements that move them forward toward healing. Mediation is not right for everyone. In instances of domestic violence, safety is always the first concern. If someone is concealing funds, you may need the intervention of the courts to freeze accounts or trace monies. Most people are simply trying to figure out what they need to do to become divorced with the least amount of damage possible and, for them, mediation is an excellent option.

Holiday Traditions

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A Mediation Center holiday tradition–wrapping gifts at EastView Mall to raise money for Ontario ARC!

I’m probably the most traditional person I know when it comes to my favorite holiday–Christmas. I even look forward to simple traditions, like the sweet potatoes topped with pecans we only have once a year and the raucous gift exchange game with extended family on Christmas Eve.

I often hear families this time of year expressing concern about maintaining their holiday traditions for their children when divorcing. Traditions are comforting. They fill our need for reliability, an element which is often shaken when divorcing.

Yet, every year–like it or not–things change. For one thing, we never had that sweet potato dish in our family until my sister-in-law made it for the first time a decade ago. And we never did that wacky gift exchange until one of our family members skipped a year and came back from Minnesota with this new idea.

My point is, traditions haven’t always been traditions–someone started them. And, while it may be possible to maintain certain traditions, divorce often means that some of them will have to change. As a parent, you have the opportunity to show your children that it is possible to create new and special traditions.

With hopes for peace, inspiration, and a new sense of reliability, here are some “new” traditions to consider:

Thanksgiving movie night followed by going to see Santa on the Friday after Thanksgiving;

Reading “Hershel and the Hanukkah Goblins” after lighting the Menorah;

Playing “The Message Game”–each person writes one thing about every person present they appreciate and then everyone takes turns reading the messages and tries to guess who wrote it;

Hunting for the “Santa Present” that Santa left on Christmas Day when the Child was with her other parent;

Giving each child a special ornament to hang on the tree and then presenting them with “their” ornaments when they move into their first place.

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.

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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“Panic to Action” Leads to Poor Outcomes

Calm Panic Buttons Show Panicking Or CalmnessWhen conflict hits it can feel like a crisis urging us to act quickly. That makes sense because adrenaline and other stress hormones flood our body and brain preparing us to take flight or fight. This can lead to heroic acts like lifting a car off a trapped person, but in our daily lives it more often leads to a panic to action that causes all kinds of bad decisions and outcomes.

This is especially true when going through a divorce because there are so many unknowns: What will we do about the children? Where will we live? Will I be able to afford to retire in the future? Will I have to pay support? Will I receive support?

Yet, reflection, not reaction, are needed when working through a difficult situation. Take the time you need to think things through. If your spouse is pressuring you to act, reassure them by giving them a timeframe when you will give them answers or schedule an appointment with a mediator.  Say something like, “This is really important and I don’t have the proper time to deal with it now. I will have more to share next week.”

Although divorce may be the last thing you want to be going through, ask yourself, if this situation worked out perfectly, what would the result be? This often leads to an immediate sense of calm because you are shifting your brain’s attention away from panic and focusing on a positive outcome. Next, ask yourself why that particular result is important.

Discovering why we want an outcome helps us to understand how we are feeling and what we are needing. Let’s say I am a parent and the best outcome for me would be to keep our current home and have the children spend weeknights with me. I could be feeling anxious because I have a need for security for my children. Or, I might be feeling scared, because I have a need for support from my neighborhood friends. You get the idea.

I may not get everything I want, but identifying how I am feeling and why I want an outcome helps me to regain a sense of control and opens up options to get to my needs met.  Operating out of pure emotion without understanding what is driving me will often lead to hasty decisions to make the bad feelings go away. For help through divorce, contact a mediator today at 585-244-2444 or info@mediationctr.com.