Category: Blog

Marital Mediation Offers a New Option

Sometimes couples come to us in a situation where both parties are unhappy with certain elements of their marriage. They don’t want to continue the relationship as it is now, but they really don’t want a separation or divorce.

Marital mediation can be an invaluable tool in reaching mutually acceptable agreements on how a couple will handle targeted areas in the relationship. The neutral mediator helps you both have meaningful and often enlightening conversations about your needs and expectations around problem issues. The mediation is specifically focused on defining these areas of conflict and changing how you interact when dealing with them, setting goals and establishing agreed to processes to meet your needs.

Some examples of issues that couples have mediated are: how money is spent, setting boundaries for children, and balancing responsibilities around the home, as well as many others. There have also been mediated situations where one spouse wants to give information to the other spouse, but is uncomfortable doing it without being in a supportive environment. One example of this might be that one spouse has run up a large amount of debt that the other spouse is unaware of. In the mediation setting, the disclosure of information can be followed up with decisions and agreements on how the couple will deal with the issue for the future. You come up with a plan that works best for both of you.

While the Marital Mediation process allows couples to express their values and goals around topics that are areas of conflict, it is unlike therapy in that it is future focused – it does not seek to go back and deal with the past, or assign responsibility for how these conflicts arose, and lasts only a few sessions. This is not therapy. For therapy, you should seek the help of a licensed therapist/Mental Health professional. Mediation helps people to negotiate difficult situations, communicate and come up with new tools and plans for the future.

Any relationship has areas that take hard work to maintain, and most relationships are worth the effort. If you are interested in giving marital mediation a try, you can set up an initial, no commitment consultation. Please call: 585-269-8140.

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.

NYSBA Task Force on Family Court Report

The New York State Bar Association Task Force on Family Court issued its January 2013 Final Report. Finding No. 5 of the Final Report sets forth the conclusion which many in the mediation field already believed to be true – the mediation programs in NYS Family Court “should be greatly strengthened, expanded and funded.” The Task Force noted the loss of many family court mediation programs due to budget cuts and recommended funding for mediation should not only be re-instituted but should also be increased in Family Courts. It concluded that mediation is very effective in dealing with a range of situations, such as child support and child custody cases. It is well worth the time to read the Final Report and the comments regarding mediation. It can be found at http://www.nysba.org/AM/Template.cfm?Section=Final_Report_9_21_2012.

What does the mediation process for separation or divorce look like?

The mediation process for separation or divorce answers all the same questions and resolves all the decisions that you would in a litigated divorce that goes to court.

A mediated separation or divorce takes less time, is less costly, is private and the decisions are made by you, the clients. Clients sit in a comfortable office with one mediator to make decisions 

The typical mediation process looks like this:

1)    A one hour initial consultation is set-up with one of our mediators. We answer all your questions and go over the process in detail. You decide if the process is a good fit for you and your situation.

2)    After the initial meeting, it typically takes 3-4, 1 ½ hour sessions to go over issues surrounding parenting plan, equitable distribution and support issues. Depending on your specific situation it may take more or less sessions to resolve all the issues.

3)    Once your decisions are made, the mediator writes a Memorandum of Understanding that summarizes all of your decisions. One last meeting with the mediator is required to review the Memorandum and make any changes.

4)    You, the client, take your Memorandum to an attorney of your choosing to review the document and make the appropriate filing.

The mediation process doesn’t necessarily involve attorneys until the end of the process, and keeps you out of court. The results are: more money stays in the pot for both households, you can set the pace of the process and not be at the mercy of the court system, you make the decisions that are best for your specific situation and communication is established between the parties that fosters cooperation in decision making. The emotional benefits of working cooperatively together are lasting.

Electronic communication and the challenge of co-parenting

After divorce, parents often are challenged on how to communicate effectively. Mastering such communication skills can be very difficult especially when lack of communication or hostile communication skills may have contributed to their divorce. Despite the difficulty, it is important to communicate since good communication can reduce the post-divorce conflict. It is a common assumption by many mediators that limiting post-divorce conflict between the parents will assist kids adjust. In addition, it seems logical that less conflict will reduce the stress in the lives of the parents, too. I as well as some of my colleagues in the mediation field were eager to have the communication process improved by the electronic age. We believed e-mail as well as cell phones for calling and texting, were going to be a fantastic resource for parents- Fortunately, there were folks willing to do scientific research on the subject.
At the University of Missouri a group of researchers studied the use of communication between divorced parents. The parents used electronic calendars, e-mails, and cell phones in their efforts to co-parent. Lawrence Ganong and Marilyn Coleman and their team discovered that despite the use of electronic communication, the parents reported a wide range of ratings about the level of their post-divorce conflict. The technological tools ranged from helpful to harmful. The parents with good co-parenting relationships used electronic communication in effective ways which improved their communication. Unfortunately, parents with poor co-parenting relationships sometimes used these tools to harass, control and mislead the other parent. It seems that while technology can be a useful tool it is does not cure or correct the underlying communication problem. If you want more information on this interesting study, check it out in the Family Relations Interdisciplinary Journal of Applied Family Studies. Volume 61, Issue 3, pages 397-409, July 2012 published by the National Council on Family Relations.

Why Are You Doing That to Me?

Sometimes as we go through our busy lives, we are negatively affected by the actions of those around us. The idiot who pulled out in front of us, the teenager playing their music too loud, the creep who pulled into the parking spot we were going to take.

I know how easy it can be to react in ‘justified’ anger: “I had the right of way”, “The sign says ‘Quiet’”,  “He saw me waiting for that spot”. How could that person be so selfish? You feel they have purposefully acted against you.

Maybe. But what if they didn’t? What if the person was just not very good at judging distances (because their eyesight isn’t what it used to be)? What if the teen didn’t realize how loud his music was (because he’s lost his hearing from playing his music too loud)? What if the creep was distracted by the baby in the back seat and really didn’t notice you waiting?

How differently would you feel if you knew that this person had simply made a mistake? We may be pointlessly putting ourselves in a bad mood, feeling put upon, or worse, starting a confrontation. To put things in perspective and to keep myself from reacting in situations like these, I have devised the following trick:

I pretend the bad driver is a friend of mine. I’m pretty sure she cuts people off daily. I imagine the teen is my son. Enough said. And I imagine the parking spot stealer is myself, because I have actually done this without realizing it until being told afterwards. Because I know that my family, friends and I are fully capable of making these mistakes, and I would hope that the person impacted by our actions would forgive me and those that I love, I do the same for them. And if I’m wrong, and the person IS just being a jerk, well, that’s his/her problem, and one that will do them a disservice in life. But, it doesn’t have to affect me.

Managing the Loss and Grief of Divorce

Experiencing a divorce can bring with it a profound sense of loss. Yet it can also represent an array of possibilities. It is important to manage your sense of loss, and honor the grieving process when you divorce so that you will be able to construct a healthy future for yourself, and your children if you have them.

Things you might consider when going through divorce include:

Working with a mental health professional. Even if only through the period of separation and divorce, many people find it helpful to have someone to talk with who is neutral and supportive.

Taking good care of yourself. We all know we should eat well, get plenty of rest and exercise, but during times of stress this is particularly important.

Giving yourself a break. The difficult process of uncoupling means that you might not always do the right thing. When you mess up, apologize, forgive yourself and resolve to do better.

Doing what brings you joy. Remember that you still have a right to be happy. Take time to read a new book, watch a favorite show, play a sport, work on an art project, catch a meal with a friend, go for hike, wear something special, pet your cat or dog–whatever it is that makes you happy.

Using mediation as your process for divorce can also help. The ability to keep communicating through this difficult time can help you construct a healthy future for all of those concerned. The mediator assists by providing information, facilitating the conversation, and helping manage conflict and strong emotions if they arise. With mediation, you have direct input and make the choices that you feel are in your best interest, rather than relying on someone else to tell you what to do. After all, you are the expert in your own life.

Contact one of our mediators today to learn more: 585-586-1830.

Do you really need that?

I recently attended a conference on Nonviolent Communication. A statement at the top of the handout we received read: “All human actions are an attempt to get a need met.” Wow. Fascinating. And totally applicable to mediation.

In mediation, people often come in entrenched in their positions. All kinds of emotions come out as they defend those positions. We see it expressed in ways that run the gamut from disengaging to yelling. The premise of nonviolent communication is that the clients’ emotions express feelings that stem from a perceived need, and the actions people take (crying, speaking loudly, talking over someone else) are their attempts to get the need met.

The problem is, people may not even recognize they have a need, and only be in touch with the feelings invoked by not having that need met. Therefore, they can’t express the actual need. What they do instead is put forth a strategy they have developed to get their need met. This can be the cause of conflict with others. For instance, a neighbor may insist they need to put up a fence in their yard, when their actual need may be privacy, or to have the neighbor’s dog stay off their lawn. If putting up the fence is a problem for their neighbor, what other ways can the need be met that might be agreeable to both parties? Can the dog be kept on a lead when it is outside? Will a privacy hedge work?

In a divorcing couple, both might insist they need to stay in the marital residence. That may seem like an impasse, until you ask the question, what needs are they trying to meet? A need for stability? For the children to have continuity? For keeping up relationships with neighborhood friends? Obviously, they can’t both stay in the house, and sometimes for financial or other reasons neither can stay in the house, so how else can they get these needs met?

The next time you are in conflict with someone, ask yourself “What is my real need, separate and apart from my strategy of trying to get it met?” What is the other person’s need that is not being met by my deciding to meet my own need this way? If you separate the needs from the strategies, you will move the discussion from an emotional exchange where neither party can move from their positions, to a problem solving session. In that space, you can work together to create mutually acceptable solutions.

As the presenter put it: “Hold on tight to your needs, but be wide open to the possible strategies for getting those needs met.”

When You Want a Divorce and Your Spouse Doesn’t

Deciding to Divorce is a devastating decision to have to make. None of us get married with the thought of divorcing in the future. We marry our chosen spouse for many different reasons. The bottom line is, this is the person you chose to go through life with and somewhere along the way, it all changed. And here you are reading this blog.

There are many issues. How do you have the conversation regarding separation or divorce? How do you get your spouse to mediation? And what happens when one wants the divorce and one doesn’t? How do you both move on productively?

You have a life with this other person that may include children, a house, cars, marital debts/assets, and many other possessions. Not to mention the feelings and memories that go along with this life. But what if, you want a divorce and your spouse doesn’t? What if this other person who you have formed a life with, whether it has been for a short time or if you have been married for over 20 years, wants to stay married? He or she may feel blindsided by your decision and this can make the process of moving on even more difficult. If you alone are making the decision to divorce, your spouse feels helpless and that they have no control about what is happening in their life.

You have already let go and emotionally started to move on with thinking about life without your spouse. Your spouse has not done so yet and getting to that same place will take him/her a long time. So, beginning the mediation process can be complicated by the emotional aspect of a person who is still trying to hang on. People need time to process information and when one spouse has been considering divorce for months and maybe years, the other spouse has been in the “dark”. The news comes as an incredible shock, and you both find yourselves on completely different pages of this book of life and marriage. This is a very common scenario in mediation. People need time to vent their feelings and time to process. Getting the spouse who does not want to be apart to transition their thoughts and feelings is a complicated process and takes time. Mediation can help people deal with the emotions associated with moving on and redefining their role as a spouse/partner to ex-spouse/ex-partner.

Communicating your wants and needs to your spouse is crucial. If a separation or divorce is what you want, then you must have the conversation with your spouse, no matter how hard it will be. The mediation process allows you the ability to speak openly and privately with your spouse about many issues, with a neutral third party (the mediator) in the room to help you with the conversation. Learning to talk openly and gaining new tools for communicating in the future will help both of you.

Moving on productively for both parties is one of the main goals of mediation. Being productive is a very individual thing and each couple must find what works best for their specific situation and family. Finding the best solutions for your unique life and family and creating an agreement that works for both of you is what mediation is all about. The mediation process puts the control and ownership for your life and decisions in your hands. Even the spouse who initially did not want to divorce can feel empowered and that they have some control over the situation they did not originally want, but find they must plan for and participate in.

Renee LaPoint