Frequently Asked Questions
1) What goes into a “parenting plan”?
Here are some of the decisions/issues a parenting plan can address:
- How will communication be handled? E.g. email, phone, text?
- What decisions will be shared? How will they be made?
- Will you both agree to the other parent’s autonomy when children are with that parent?
- When will the children be with each of you?
- What wil be the logistics of transferring children? Be specfic. What time? Who will transport? Will children have eaten first? Who will oversee homework? What things are expected to return with them?
- What will be done if a scheduled visit cannot take place?
- How will each holiday and school vacation be divided? Be specific about times.
- When will the children and nonresident parent talk on the phone?
- How long can each parent take children away on vacation? How much notice should be given the other parent? Should the vacationing parent provide an itinerary and emergency phone numbers?
- Try to agree on some basic rules for both homes eg on discipline, bedtimes, homework, screen time.
- How will children continue their relationships with the non resident parent’s family?
- Who will go to parent teacher conferences, and how will information about school progress be shared?
- What activities will children continue eg music lessons, sports teams, camps? How will they be paid for?
- How will the children be supported?
- How will medical, dental, child care, and college bills be paid?
- How will further disputes be resolved?
2) What is divorce mediation?
Divorce mediation is a process by which you and your spouse can negotiate the terms of your separation or divorce in a cooperative, non-adversarial setting, with a minimal investment of time, money, and emotional energy. The mediation process results in a settlement that becomes the basis for your legally binding separation or divorce agreement. A divorce mediator is bound to be impartial and nonjudgmental. The mediator will help you create a separation agreement so that you can plan for the future, and if you have children so that you can develop or continue a good relationship with them. In the process of the mediation you and your spouse will learn how to recognize and overcome impasses and reach decisions regarding support, division of property, and parenting arrangements, with the hope of preserving your relationship for the years of shared parenting ahead.
3) What are the advantages of mediation versus litigation?
1. Cost and Time Efficient
Mediation saves time, money, and emotional energy. It avoids the cost and time of adversarial litigation. Because you know the fee involved and because you can decide how quickly you want to proceed, rather than the court, you can control the total cost. While you can only move as fast as the slower party, you are not subject to the Court’s calendar.
2. Preservation of Future Relationship
Real communication can begin between spouses in conflict with a mediator in control of the process. As you and your spouse deal directly and openly with each other, you gain negotiation and communication skills that will help your future relationship to continue with reduced conflict. Mediation emphasizes the future and allows you to move forward from the painful and angry conflict of the past to a civil and respectful co-parenting relationship.
3.Self Determination/Future Focused
In mediation each of you is empowered to control your own future, rather than your lawyers or a judge, and since you have shared in the negotiation process you are more likely to abide by the agreement. In addition, as you work together to forge better individual futures, and a joint future sharing the parenting of any children, there is a lessening of conflict, an emotional processing of separation and loss, and the beginning of acceptance and closure.
4. Children’s Best Interests
Divorce mediation provides a neutral setting in which to come to an agreement that meets each person’s and child’s unique needs.
Reducing conflict is what is best for children and mediation can reassure your children that the two of you can still work together to care for them in a way that models respect and civility, even under stressful situations.
5. Open Communication
Unlike divorce litigation, mediation encourages open communication, with each person not only speaking up for their own needs, but listening to their spouse’s needs as well. Often in a marriage spouses don’t feel heard. Mediators help couples learn new ways to resolve conflict and develop a better understanding of each other’s realistic needs.
6. Creative Parenting Arrangements
Instead of having to adopt an arbitrary, court-ordered schedule, you can thoughtfully develop your own parenting arrangements. You know your children and family best, and you can devise the best plan that will work, and that can grow and change over time as the children do.
Issues you would prefer kept out of court – for example, financial details or custody issues – can be resolved in a private, neutral setting. A mediator cannot be subpoened to appear in court and the conversations and documents produced in mediation prior to the final Separation or Settlement Agreement are considered confidential because connected to settlement discussions. This should serve to reassure participants in mediation that they are in a safe space, where full disclosure is not only encouraged, but expected.
4) What is the difference between mediation and collaborative divorce?
In mediation you would be sitting with me at the table with your spouse or the other parent. I am acting as a neutral, providing legal information but not legal advice. Parenting specialists, therapists, consulting attorneys or financial specialists typically provide guidance of outside the sessions. Assuming there is no major power imbalance, domestic violence, serious capacity issues or withholding of financial information, the process can be cost effective and allow you to have a great deal of say in the outcome.
In the collaborative process I am sitting next to you at a table with your spouse sitting next to his or her own attorney and a family specialist as well as possibly a financial expert attending in a neutral capacity. I can provide legal advice as well as information. There is a little more leeway with regard to power imbalances, some capacity issues or a reluctance to disclose financial information because of the team approach and the process is more cost effective than litigation and still allows the spouses to have a great deal of say in the outcome.
5) How long does mediation or the collaborative process take?
These non adversarial processes are on your time, not the court’s, so we can move as quickly as you like – but we can only move as fast as the slower person. Mediation and the collaborative process are voluntary – we cannot compel someone to attend or to participate by doing their homework between sessions or speaking up in a meeting to move the process forward. We cannot compel them to provide financial information if they are not inclined to do so.
The meetings are usually held approximately 3 weeks apart and it typically can take 4-6 meetings if you have children and 3-5 meetings if you do not, but even these ranges can vary depending on the number of issues to be decided, the ability of the spouses or parents to work together outside of the sessions and come up with their own agreements, and the level of conflict between them.
Sometimes a pause in the process is not only warranted, for example, to try out a parenting plan, but helpful, for example, if you are feeling too emotional to make rational decisions and need a little time to pass for you to be able to think more clearly. There is often a pause when a couple has addressed their urgent issues, was able to agree how and when to make separate homes, and has worked out how expenses will be paid. Once they have achieved that breathing space, there is often a natural break from moving forward to formal separation or divorce.
6) How does equitable distribution work in New York?
New York is an Equitable Distribution state, meaning that in a divorce there should be an “equitable” ie ” fair” division of the assets and debts of a marriage, rather than an automatic equal split as in a “community property” state such as California.
There are three steps to in the equitable distribution process:
- Define the Marital Period. This period runs from the date of marriage to the date of separation. Assets from prior to the date of marriage are considered separate property. In a contested matter the date of separation would be the date the summons is filed and the divorce action is commenced. In the non adversarial processes of mediation and collaborative divorce, the spouses can choose their date, which can range from the date they moved into separate bedrooms, to the date they made separate homes to the date they started mediation or the collaborative process or sign the agreement.
- Define Asset Values Within That Period. The spouses will provide statements as of the agreed date of separation for all assets whether in sole or joint names because title does not control in New York.
- Determine How You Will Share Those Assets. Guided by the mediator or the collaborative team, the spouses will discuss how to share the assets. In a long term marriage the typical sharing is 50/50, but in a shorter term marriage this might not feel right. We will look at “trade offs” in assets to see if we can minimize the logistics and the need for a legal document called a Domestic Relations Order or a Domestic Relations Order, which can take time and money to work out. The tax impacting of the trade off, with the help of a financial professional, must be considered.
Contact our office and let us know how we can help.