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A very important point for mediators to remember when preparing a memorandum of understanding is that under New York State law, a presumption is created that that many designations made during a marriage are revoked upon a divorce. Often times, a spouse will desire to have his or her ex-spouse continue to be the beneficiary on an insurance policy or a retirement asset. Sometimes a spouse will desire their ex-spouse continue as his or her health care agent, or executor or executrix of his or her will. In all these situations, the presumption is the designation fails upon divorce. In order to disprove the presumption, the designation must be remade post-divorce or the designation must be included in the judgment of divorce. A reminder in the memorandum of understanding that the parties should talk to their attorneys about remaking the designation or including the designation in their judgment of divorce, could help your clients achieve their desired outcome.
Making the decision to divorce is a difficult one, particularly if you still care about your partner. You may be tempted to try to soften the blow of your decision by offering some hope of reconciliation. While it seems harmless, if such a possibility is not likely, it can actually cause more pain for your partner.
It is perfectly alright to share with your partner how painful this decision is and your continued care for him or her, but it is also vital that you are honest about your resolution to end the relationship. Offering to “try out” a separation when you know in your heart that you do not want to reconcile gives your partner the belief that there is something she or he can do to fix the problems in the relationship. Your partner deserves the dignity of responding to the reality of the situation and the opportunity to grieve.
If you really are ambivalent about whether or not the marriage is over, our mediators can help you and spouse have an honest conversation to discern what next steps you would like to take. If you need couples counseling, we can make a referral. If there are specific issues within the relationship you want to work on, relationship mediation may be an option. And if you do wish to go forward with a legal separation or divorce, mediation offers a dignified approach that allows you and your spouse to retain control of the decisions that will affect your family.
Rushing through the many decisions that need to be in your settlement agreement when you are separating or divorcing, is never a good idea.
People divorcing or separating are in crisis. Whether you are aware of it or not, you are going through a loss and must give yourself time to adjust to this huge life change. Even if you are the one initiating the split, you need to take the time to make thoughtful and considered decisions. The decisions you make in your Settlement Agreement, whether you are seeking a legal separation or a divorce, are lasting. Once these decisions are made and filed by an attorney, changes are very difficult to make. You need to be as sure as you can when making these decisions that will affect your future.
In mediation, YOU set the pace of the process. You must decide many things including: parenting decisions (if you have children); equitable distribution of assets and liabilities; and any support issues, both child and spousal. You can take the time you need to make the right decisions for your family.
You are also in control of the decisions that are being made in mediation, rather than an attorney or judge. Mediation gives you the ability to make customized agreements that suit your situation best.
Mediators are trained conflict resolution specialist who facilitate conversations as neutral third parties, providing you the information you need to make good/informed decisions. This empowers you and your spouse throughout the process. You decide what decisions get made and how those decisions are applied to your specific situation.
For more information call: 585-269-8140 or email [email protected]
It can often be difficult to express what you want in a way that the other person can hear your request. Very often, especially when we are upset, the person we are talking to hears our request as a criticism or a demand and they become defensive. Here are a few suggestions about how to communicate your needs in a way that might be better received.
First, practice what you want to say in advance, where and when you will say it. The more prepared you are for the conversation, the less likely it is that it will degenerate into an argument. Next, spend some time thinking about how you feel and take responsibility for your own feelings. Feelings are emotions–not accusations. “I feel sad” is different from “you disappoint me.” Identifying and stating your feeling can help the other person to empathize with you because we have all felt sad, afraid, or angry. Then, identify what you need. Needs are universal. All of us need food, water, air, and shelter, but we all also need connection, meaning, autonomy, and a sense of well-being. Again, if you can articulate your need, it is more likely the other person will relate to you, rather than rally against you. Finally, make your request.
Here’s an example. After practicing and deciding that right after work, while the children are out of the house and they won’t be interrupted, a wife approaches her husband. “I would like to talk for a minute, if now is a good time?” Getting agreement, they sit down at the table together. “I have been feeling irritable lately because I have a need for intimacy. I am wondering if you would be willing to schedule two nights or days each week with me that we could have time alone, without the children, to reconnect physically?” There is no guarantee that her request will be met, but it could begin an honest conversation that will help them both to clarifying more deeply what they each need from their relationship.
To learn more about these techniques, you might want to read Non-Violent Communication: A Language of Life, by Marshall B. Rosenberg, Ph.D. You can also contact a mediator who can help you facilitate an honest conversation that might feel to difficult to have on your own. Mediators offer support and help to manage strong emotions as they arise. For more information, email [email protected] or call 585-586-1830.
Once again, the Mediation Center is helping out.
We have donated refreshments, bags to be auctioned, raffle items, and even a bartender to NeighborWorks® Rochester for its auction tomorrow afternoon/evening.
NeighborWorks® Rochester is auctioning off themed tote bags full of goodies! Each bag offers a great group of items for you to bid on. To see what they have to offer, visit www.32auctions.com/ourbagsroc or keep an eye out for the bags around the city. The auction runs through June 7th and culminates with a Happy Hour from 4-7 at the Neighborworks Rochester building @ 570 South Ave that will offer chances for final bidding, complimentary food, alcoholic and non-alcoholic beverages, and a raffle.
Join us as we celebrate with the folks at NeighborWorks® Rochester!
All proceeds benefit NeighborWorks® Rochester which creates sustainable communities by providing services to support individuals and families with purchasing a home or improve an existing home. NeighborWorks Rochester offers education and grants for home purchase, loans and grants for home improvement, energy efficiency audits and improvements, and lead paint inspections throughout Monroe County. For more information, please call 585-325-4170.
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.
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.
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. If your final decision is to go through with the divorce, then you may need to contact a group such as Hibberts Solicitors in Nantwich to help guide you through the complicated legal processes associated with divorce.
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. If you decide to go through with the divorce and are based in Pennsylvania, it would be wise to familiarise yourself with the pa divorce laws.
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.
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.
Renée O. LaPoint, M.S., founder of Divorce and Family Mediation Services, Inc. and now President of The Mediation Center, Inc., has over 20 years of experience in helping people resolve relationship issues. Renée has used divorce mediation herself and has first hand knowledge and experience of conflict and divorce, the mediation process, and its advantages. Her personal experience can help you by truly relating to your situation. She understands because she has been through it. Now remarried, she also understands blended family issues and relationship challenges that couples and families face every day.
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