Category: <span>Uncategorized</span>

Should you end your marriage?

Cracked egg, broken marriageNo ethical divorce mediator (or attorney) would ever push you to end your marriage or partnership without making sure that one or both of you are completely certain that you are no longer willing to stay in the relationship.

Many couples come to our consultation at different places about ending the relationship. If one person has decided to end the relationship, it is likely that they have been considering it for a while and have had time to come to terms with it. It can be very hard for the spouse who hasn’t made the same decision to psychologically process their spouse or partner’s decision in the amount of time they have before there is a move by their spouse/partner to initiate a separation or divorce.

While it would be wrong to give false hope to your spouse/partner if there is no hope that you will continue to stay in the relationship, if there is a willingness to explore that possibility, there can be many benefits to both of you. The intent of going to counseling at this point would be to see if there is still an opportunity to work on saving the marriage/relationship. This will give each person a chance to get clear about what your needs and goals are for this point in your lives, which may not be the same ones you had at the start of the marriage.

Both partners can benefit from this exploration. It will help each person clarify what they want from their marriage and it will help you decide if those needs can be met by your partner. The process may make it clear to both of you that you can’t give each other what you are looking for, or you may discover that there is room within the marriage/relationship for that to happen. Even if counseling isn’t going to save the marriage, both of you will be clear that it is ending and be aware of why it is ending. The process will offer the partner who doesn’t want to end the marriage more time to get used to the idea, and it will also provide closure to the partner who is ending it, knowing that everything was done to try to make the marriage work.

Even if the relationship will end, through the process of working with the counselor you may have regained some understanding and respect for each other, which will be helpful in being able to work together in mediation to create a fair and equitable divorce agreement that will be in the best interest of you and your children. It will also be a great starting place for you to re-define your future relationship in a more positive way, which is especially important for co-parenting children.

Should you end your marriage? Not until you are completely sure. If you would like referrals for marriage/relationship counselors, please call our office at 585-244-2444.

Barbara Kimbrough                                                                                                                                              Mediator

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.

You might find that to make it easy to look after your children after the divorce, that by hiring a nanny or an au pair could greatly benefit you and help your children feel more stable in this sort of situation. There has been an increase in popularity for people becoming an au pair, particularly as it is so easy for young people to apply for the role through sites like Cultural Care Au Pair. However, despite it being easy for people to get this sort of role, as a parent you have to decide if this would help you and your children through the divorce and whether it would be a good idea or not.

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. This is why divorce is such a sensitive procedure. Those going through it might want to get in touch with solicitors who are experienced in family law, like PETERS AND MAY, who may be able to make the whole thing can go as smooth as possible.

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]

(Blogs are Attorney Advertising)

College Blues?

Heart and BrainLabor Day is almost here and it’s that time of year when new and returning college student’s pack up their rooms at home and head back to their dorm or off-campus housing.

And how are the parents doing? It is an emotional time for all of us, students and parents. The emotions are mixed. Our head says one thing and our hearts may say another. Those of us with freshmen college students leaving the nest for the first time may be very sad or excited for their student, or some combination of both, while some parents may be feeling a sense of relief that their child is “finally” out of the house.

It is okay to miss your child, but be excited and encouraging for their new “adventure”. Homesickness is a normal part of the process for both the student and their parents. Encourage their new independence. The number one reason students leave college and don’t return is they have failed to make a connection with someone or something at the school, so encourage them to get involved and take advantage of activities.

No matter what emotions you have, it can be a very stressful time for you and your spouse and you may not see eye to eye on how to deal with new challenges. If you need help working through any of the stresses, emotional, financial, etc., consider mediation to help you and your spouse work through this time of change and transition. Marital Mediation focuses on specific issues and helps you both move forward.

Contact us at 585-244-2444 or email us at info@mediationctr.com

Another practice tip for New York State mediators

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.

The Rochester Association of Family Mediators

It is important for new mediators to discuss issues with more experienced mediators, mediators of all levels of experience to bounce questions off their peers, and for the exchange of information to occur in the mediation community.  The Rochester Association of Family Mediators (“RAFM”) is a professional organization of family and divorce mediators practicing in the greater Rochester area.  It is an excellent forum to meet the needs and goals of local mediators.  Mediators from as far away as Oneida, Tompkins, and Genesee Counties have taken advantage of the programs offered by RAFM.  There are regular meetings on the second Tuesday of each month (September through June) from 9:00 AM to 10:00 AM,  in the Stage Conference Room of Brighton Town Hall, 2300 Elmwood Avenue, Rochester, NY 14618- guests are welcome.   For more information on RAFM, check out the website http://www.rafm.net/

 

New York State – An Equitable Distribution State….What does that mean?

For about what it costs to have dinner at a nice restaurant, a couple in New York State can zip down to the court house, sign a piece of paper and get hitched. But, if a couple wants to divorce, the financial costs are much greater.

None of us that get married are thinking we will get divorced. When we get married, we’re all caught up in the romance, planning the wedding and looking forward to the honeymoon. We are working, buying a house and planning for children. The long term outcomes of the marriage itself are not even on the radar and “divorce” is something other people do.

So, fast forward fifteen years and you may have three kids, a goldfish and a golden retriever, a mortgage and a couple of car payments – and a spouse you can’t relate to anymore and have grown apart from. You love your children and the fish (the jury is still out on the dog), and you want a divorce.

New York State is an equitable distribution state, and although “equitable” doesn’t necessarily mean equal, it means you need to come up with a fair division of property. Marital property is defined as anything acquired during the marriage where marital funds were used. Cars, houses, motorcycles, sewing machines, guitars, retirement accounts, and yes, even the goldfish. Liabilities like loans and other debt are shared as well.

Property acquired prior to marriage may be considered separate property.  There are exceptions to be sure, and we look into all the specific situations during the mediation, but in general, everything that was accrued during the marriage may be considered joint property regardless of who earned it or who took out the loan and whose name it’s in. In mediation, everything is on the table for discussion to reach the best possible outcome for everyone.

Every family is unique and different. Mediation is sensitive to that by allowing for customization of agreements. Mediation helps couples decide how to divide marital assets and liabilities equitably and in a way that makes sense to the couple.  Mediation also keeps the couples costs down by using one mediator rather than two attorneys and the process can be much less lengthy than a court case, also keeping process costs down.

Although property is owned jointly, most couples in mediation find a good way to create a division that works best for both of them.

Renee LaPoint

The Pain of Being “In-Between”

Last year I had my first experience climbing a rock wall. I was literally tethered to my friend Jude, who controlled the amount of rope I was given in order to climb and was my only support when I was ready to return to earth. On my first climb, I froze part way up, not wanting to go forward or backward. While clinging to the wall, my palms began to sweat and my legs became like jelly. My body was literally failing me. Read more

Gift Wrapping For a Cause

During the holiday season 2012, Ontario ARC’s annual Holiday Gift Wrapping Booth celebrated its 17th year at Eastview Mall.   The Gift Wrapping Booth was initially established by the Mediation Center’s Bobbie Dillon.  Over the years, Bobbie, her family and friends have always volunteered to wrap gifts.  This past year was no different- Bobbie recruited the rest of the Mediation Center team,  Barb Kimbrough, Julie Mersereau, Renee LaPoint, and Don Crumb, to spend an evening wrapping gifts.  It was a fun time for all of us!

All of the proceed from the gift wrapping booth benefit Pet Connections — the Ontario ARC’s amazing program that connects pets and people with intellectual and developmental disabilities.  For more details on the ARC and its programs check out http://www.ontarioarc.org/All 5 at Gift Wrap Booth 2012

Altering Time and Space

“You must give up the life you planned in order to have the life that is waiting for you.”—Joseph Campbell

When I’m working with divorcing couples, one of the most important things I do as a mediator is to attempt to alter time and space! What does that mean…?

Going through a divorce is stressful and consuming. It’s a major adjustment. But what lies beyond that? What happens when you have adjusted, and have the space to move forward? People have the rest of their lives ahead of them—it’s just hard to picture that as you are going through the divorce.

My job is to help my clients look into the future and to get them to imagine how their lives will look five, ten, twenty years from now. That plays a large role in the choices they are going to make in their divorce agreement. What financial support would you need to go back and finish your master’s degree so you can get a better job, now that you are living on a single income? What if you are going to want your children to go to religious or other private school once they are school aged? What would you want in your parenting plan if you or your spouse meets someone? Marries someone? What if you get a great job offer in another city?

The areas covered in a separation or divorce agreement need to include provisions for these types of situations, or at least include commitments to get together, discuss them and come to agreements in response to a triggering event in the future.

Too many people going through divorce feel stressed, guilty, or withdrawn from the situation to the point where they decide they just need to get it over with. It’s a position they may regret later on.

Sometimes helping my clients make the best choices means making sure they understand their options, sometimes it means referring them to the appropriate professional who can go through financial needs or legal rights with them, but always, it means getting them to think “What will be my story? What are the different paths I might take from here and how can I be prepared for them?”

That’s why it’s so important for me to hold a window to the future open to my clients and get them to think, “What if….”