Advice sought on separation, mediation

Parent Cafe
1

<p>Have found that the crowd here in the Parent Cafe has some very sound advice to offer, and am hoping you’ll feel free to pass some on to me.</p>

<p>As you can guess by the title, our family is facing a significant life change. At this point, we are in the very early stages, and hopefully the split will go as amicably as possible. This is not to say it’s a decision that’s being taken lightly. It’s been a long time in the making, unfortunately. </p>

<p>It will be a challenge, but I’m ready to face it. What’s hardest is the prospect of what the kids will go through, and this is what’s been keeping me awake at night. Oldest is aware of the situation, the younger ones are not. They may know things aren’t great, but it’s not like they’ve grown up in a combative or particularly unpleasant household. H. agrees that the children will be better off living full time with me, in our home. He will remain in the area and active in their lives. I welcome any and all advice that may have helped you or your children through a similar situation. PM’s are certainly welcome. Two of our children occasionally browse CC, and while it’s not exactly a secret, I am trying to be at least somewhat discreet.</p>

<p>H. and I agree that we would like to do this as civilly as we can, and money is also a big issue at this time. For these reasons we are strongly considering going to a mediator rather than through separate divorce attorneys. The person we’re considering is an attorney who offers mediation services. Am wondering if there are downsides to using a mediator, or if there are specific questions we should be sure to ask.</p>

2

<p>IMO, there are downsides to using a mediator. I don’t know where you live, but see if there is a bar-association sponsored legal referral system. Find out how much an initial consultation costs. Go for one–or two–or three. Get a sense of what the probable outcome would be if you had a contested divorce. Get all your financial information together before you go. </p>

<p>In other words, know what kind of alimony, if any, you would receive, for how long; child support, for how long; whether you live in a state where a non-custodial parent can be required to pay college tuition; if you own your home, whether it will be sold out from under you when the youngest leaves home, etc. </p>

<p>THEN go see a mediator. I suggest this because otherwise you may bargain away things to get other things you’d get anyway. For example, lets say you consider it crucial that your spouse contribute to the college education of your kids. If you live in a state where there’s no way to force your spouse to do that, it’s worth giving up some things you are otherwise entitled to to get that. If you live in one of the few states in which the courts will require him to contribute, then it would be foolish to bargain away anything to get an agreement that he do so. In our state, there’s a child support formula which is applied by the courts in all but exceptional circumstances. Again, I think it helps to know how much child support is likely to be awarded if the divorce is litigated BEFORE you start to mediate and agree upon how much you will accept. </p>

<p>Mediators are in the business of getting a settlement. If the divorce is fairly amicable, that may be possible. But, from my limited exposure to them, they are not in the business of telling you what your rights are. So, if you’re willing to accept alimony much lower than you are likely to get in a litigated divorce, they often won’t ask you if you realize that. </p>

<p>Divorce is not my area and it’s a matter of state law, so this is not legal advice. But IMO,you should get some basic understanding of the llaw in your state before you start neotiating a settlement–which is what mediation is.</p>

<p>Once you know your rights, then mediation can work well if you two aren’t hostile.</p>

3

<p>Haven’t gone through this but a good friend is. Months ago she was in your shoes. Thought everything was going to be fairly amicable. They went to mediation. Fast forward several months and now I am encouraging her to get a lawyer. Her soon to be ex has become difficult, is dragging the children into it, dragging his heels, etc.<br>
I would at least go speak with an attorney and find out generally speaking what your rights are. Particularly since it sounds like his income is greater than yours…</p>

4

<p>I agree with the above advice. See an attorney prior to starting mediation. Your comment that “money is a big issue” at this time is a red flag. If money is tight now, wait until you and your ex are paying for two households. My attorney was worth EVERY penny. By the way, mediation is not an all or nothing deal. We worked with mediators on both custody and financial issues. We reached an agreement on most of the finances via mediation, but custody was not settled via mediation. We did settle custody before going to trial, but it was through the attorneys, not via a mediator. Our attorneys attended financial mediation with us, too, and I am glad they were there. Yes, it costs money, but less than you could lose if you make a bad deal… especially on things like retirement accounts, college tuition, alimony, etc.</p>

5

<p>Anyone who needs to talk to someone who has been through a NYS divorce pls PM me.</p>

6

<p>Thanks for these comments. The mediator who was recommended is also an attorney. I’m supposed to call him tomorrow and will be up front with these concerns, as he also does “regular” divorces law as well. A friend also suggested perhaps H. and I sitting down ahead of time to go over everything, then have me go to an attorney, present him with papers, and hopefully end up with an uncontested divorce, with similar, hopefully non-combative results. But yes, the situation ebeeee mentions has also crossed my mind.</p>

<p>I think what appeals to me about the mediator is the fact the lack of dueling sides, dueling attorneys. The situation at this point is probably about as good as it can get, all things considered, so I guess there’s the hope that we can move it along quickly and agreeably.</p>

7

<p>Mommm, the mediator usually is an attorney. But they are not YOUR attorney. Their goal is to reach a resolution, but it may not be in your (or your children’s best interest). As Jonri mentioned, they do not always tell you all of your rights or options.</p>

<p>You can choose to go to the mediator without an attorney present, but I would STRONGLY urge you to meet with an attorney of your own ahead of time. Your attorney can help you define a strategy on key issues. If there isn’t enough money for retirement, paying off your house, child support, kids education, health & dental insurance, etc. to go around, the most amicable of starts will not be so amicable in the end (or when it really hits you later on that you are hosed on one or more of those areas). There are legal nuances by state, too – you and your ex may think you have worked out an agreement that is not allowed by state law in your state (eg, child support payments are mandated by a specific calculation in our state). And there are tax implications, too, that our mediator did not mention, but my attorney knew about.</p>

<p>It may seem like avoiding confrontation now is the best strategy. But you will be sad if you and your kids end up on the short end of the financial stick. You can be amicable, and meet with a mediator. But protect your own interests, and have an attorney. At a minimum, you should NOT sign any agreement reached with a mediator without having a divorce attorney review it for hidden issues or pitfalls that the mediator did not mention. Don’t be pressured into signing something just to make everyone in the room happy. The consequences of even a few words in the agreement can be huge.</p>

8

<p>There’s another method that is called “collaborative divorce” or “collaborative law.” If the parties agree, each has his or her own attorney, skilled in the collaborative process. Additionally, mental health and financial professionals are brought in. By agreement, none of the professionals who work in the collaborative process are permitted to participate in any litigation if the collaboration breaks down. That way, their only incentive is to have the collaboration succeed. (In mediation, if the mediation breaks down, each side’s attorney often continues to get paid through litigation.)</p>

<p>The process tends to work well, the parents learn to co-parent, the kids come out less scarred, and it saves money.
[Cincinnati</a> Academy of Collaborative Professionals](<a href=“http://www.collaborativelaw.com/]Cincinnati”>http://www.collaborativelaw.com/)
[IACP:</a> Collaborative law,collaborative practice,collaborative divorce.](<a href=“http://www.collaborativepractice.com/]IACP:”>http://www.collaborativepractice.com/)
[Frequently</a> Asked Questions on Mediation and Collaborative Practice — DivorceNet](<a href=“California Divorce and Family Law | DivorceNet”>California Divorce and Family Law | DivorceNet)</p>

9

<p>There’s another method that is called “collaborative divorce” or “collaborative law.” If the parties agree, each has his or her own attorney, skilled in collaborative law. Additionally, mental health and financial professionals are brought in. By agreement, none of the professionals who work in the collaborative process are permitted to participate in any litigation if the collaboration breaks down. That way, their only incentive is to have the collaboration succeed. (In mediation, if the mediation breaks down, each side’s attorney often continues to get paid through litigation.)</p>

<p>The process tends to work well, the parents learn to co-parent, the kids come out less scarred, and it saves money.
[Cincinnati</a> Academy of Collaborative Professionals](<a href=“http://www.collaborativelaw.com/]Cincinnati”>http://www.collaborativelaw.com/)
[IACP:</a> Collaborative law,collaborative practice,collaborative divorce.](<a href=“http://www.collaborativepractice.com/]IACP:”>http://www.collaborativepractice.com/)
[Frequently</a> Asked Questions on Mediation and Collaborative Practice — DivorceNet](<a href=“California Divorce and Family Law | DivorceNet”>California Divorce and Family Law | DivorceNet)</p>

10

<p>Thank you all–
At this point I feel almost ready to do an about-face on the mediator issue, and will definitely talk to an attorney. There’s a desire on both our parts to move forward and through this as quickly and agreeably as possible, but I now get the impression it’s not going to be that easy.</p>

<p>Right now, H. is being quite agreeable, so there’s a fear on my part that an attorney or mediator will basically talk him out of it or start trouble that wasn’t there before. Will check out those links Chedva, thanks.</p>

11

<p>I’m not a parent, but my parents told me they were getting a divorce almost two years ago…
I know they started off with a mediator, but that didn’t help.
I see my dad for dinner every wednesday (well, usually) And I go to his house every other weekend. (My brother is in college)</p>

<p>I’ve never been angry at my mom for wanting a divorce (I don’t think my dad wanted it…) because I know she was unhappy.
I’ve had issues with it though, because I’m practically inbetween my two parents. Also, their timing with telling me wasn’t exactly ideal. They told me the DAY after I had gotten home from overnight camp (I was gone for almost 8 weeks) and I was shocked. I knew their marriage wasn’t perfect, but I didn’t expect it at all. (I’m a sophmore in hs now… I was just about to start my freshmen year then.)</p>

<p>Okay, I just wanted to share part of my experience from a child standpoint. Good luck! (I’m sure you’re situation will be better than mine, haha!)</p>

12

<p>I would only consider mediation if you are equally savvy about finances. If he was the bread winner and/or has been in charge of joint investments, it’s not a good idea IMO.</p>

13

<p>I am not particularly savvy re: finances, and honestly, neither is he. In fact, as I PM’d to a couple of you, H. got in way over his head on a past real estate investment that is causing major financial worry. Yet another reason an attorney is in order, I think.</p>

14

<p>liveforsummer-- Thanks for weighing in on this – it’s definitely helpful for me to hear a child’s/student’s point of view. Am very sorry to hear that you feel caught in the middle. This is something we want to avoid. H. was surprisingly agreeable to the suggestion that the kids stay here full-time with me. He plans to move to a neighboring town, and will be encouraged to remain active and involved in their lives, and be welcome here any time. At least that’s the way I hope it will work out. While there’s no chance of us staying together, we’d also like to keep some sense of family cohesion for their sake. Take care-</p>

15

<p>I always thought that the person who initiated the divorce should be the one to move out and become the visiting parent. Seriously, ask yourself and answer honestly; Would you rather be the husband, or the wife in a contested divorce? Answer Honestly I said!</p>

<p>It is the children and grandchildren of divorce that pay a life long price. Our “winner takes all” laws dooms these children to repeat their parents behavior.</p>

16

<p>There’s no winner take all in a situation like this, and I’ve never heard of anyone who thought there was. In this case, the decision is mutual, which is probably a good part of the reason we’re trying to work together on this.</p>

17

<p>

That’s one of the reasons I suggested collaborative law. It is in the professionals’ best interests, and in their philosophy and training, to talk people into agreements, not out of them. And because each is still represented by his or her own attorney, neither side gets taken advantage of. And the mental health professionals help the children as well as the parents.</p>

<p>Here’s one more link:
[Collaborative</a> Professional Center](<a href=“http://www.collablaw.com/]Collaborative”>http://www.collablaw.com/)</p>

18

<p>momm, my guess is in 90% of divorces there are no winners. There is no way you can run two households on the same money. If there are money problems now, they will get worse. I agree with Chedva’s approach that even in mediation, each party needs an attorney, otherwise you may not realize what you are giving up, under state law.</p>

19

<p>Mommm, you are correct that sometimes an attorney can add animosity to the process. My ex-H had two attorneys. The first one would get him stoked up and angry - - we were living the same house for several months until he moved out, and I could tell when he had been to see his attorney. I actually think she may have given him advice to antagonize me to see if he could elicit some bad behavior he could then use against me (didn’t work, it merely scared me). But when something didn’t go his way partway through the divorce, he fired her. The 2nd attorney did not seem to have the same effect on him.</p>

20

<p>Whether with a lawyer or a mediator, you need to rocket up the learning curve on law and practice. Immediately. Even with a lawyer you need to be your own lawyer. Divorce rapidly becomes about assets, with children a pawns. Mediation goal is to end the process quickly; you may give up too much due to patterned roles of submissiveness, or nurturing instinct, ignorance, or just wanting to end the pain. Ditto what others said: know your stuff BEFORE using a mediator.</p>

<p>Taking the house, under the guise of “best interest of the children”, is a financial trap, saddling you with a mortgage that may be underwater. In the long run, moving the children quickly into a house or apartment that is really the appropriate size for your new circumstances settles them quickly, and gets the noose of a too large mortgage off you neck. The ongoing stress of trying to keep up a house you can’t afford is more detrimental to children then a quick move. Don’t be sentimental about the house. Be smart; your children will thank you. Becareful about giving up retirement or cash assets in exchange for the value of the house. You need the cash more then you need a white elephant.</p>

<p>Be sure to consider school tuition, summer program costs, college costs (with detail of what is a college cost), cost of living increases, and surprisingly important, who handles the paperwork for school, summer and college applications. </p>

<p>Who files the children’s tax returns vs who takes the deductions? Federal Head of Household tax rate is incredibly beneficial; do not give that away lightly. </p>

<p>Do not underestimate the need to divide retirement funds. As a custodial parent your ability to earn a living and sock away your own retirement funds will be compromised. You really do need those retirement saving as a base. </p>

<p>Any schedule that you set up when the children are young will be come unworkable when they are teens. You end up working around their schedule.</p>

<p>Avoid the structure where the custodial parent only has school week time, with other parent has vacations. The custodial parent ends up as the bad guy/task master, but non-custodial parent becomes Disney Dad/mom - all play and vacations. Then the children do not have two parent; they have a nanny and clown.</p>

<p>The non-custodial parent will assume that anytime the child is not with them, they are with you. This can be a serious point of irritation, because the child may not be with you either; the custodial parent doesn’t really see the child during the week (other then as taxi driver) when the child is away at summer or other programs, or at boarding school. If your agreement includes formulas for dividing vacations or summer, be sure to include a caveat that subtracts time that the children are with neither.</p>

<p>During college visit season (late Sophomore/junior/early senior year) all vacations are about visiting colleges - nobody gets “vacations” and resentment can build. Who visits colleges can cause friction. Consider one doing prelim visits, and the other visiting colleges after acceptance. Assume that either parent may turn down or sub optimize any school they did not visit. </p>

<p>Direct Deposit is your friend; require electronic deposit of any child support or alimony in a special checking account; DO NOT RELY ON PERSON TO PERSON or mailed checks. The act of writing that check is an emotional barrior, stirring up hard feeling month after month. And if there are insufficient funds in the sending account, the sender gets slapped with hefty fees, a kind of payment enforcement. </p>

<p>Good Luck - and remember - you are your own steely-eyed lawyer, no matter which route you take.</p>