Divorcing couples seek out mediators because they want non-adversarial resolutions to the important issues that need to be discussed before they exit their marriage. Some of the decisions that have to be made may seem overwhelming, if not downright impossible. It is the mediator’s job to help the couple move through these difficult discussions – so that, together, they can remove the obstacles blocking their progress towards a mutually agreeable settlement.
New York is what is called an “equitable distribution” state. Equitable distribution means that the assets of a couple’s married life are divided in a fair and equitable way – which does not necessarily mean a 50-50 distribution of monies and property.
A number of factors are reviewed in determining the equitable distribution of assets. They can include such considerations as the length of the marriage, the health of the parties, the income of the parties and their projected future financial circumstances, the award of spousal support, and the loss of health insurance.
If the parties have pursued a litigated divorce, then the determination as to what is an equitable distribution of their assets will, ultimately, be the sole decision of the judge, who may not take into account factors that were important to one or both of the parties. However, if a couple is mediating their divorce, they will be the final arbiters of what is fair and equitable. Thus, they can craft an agreement that is more acceptable for both of them.
Personal and Real Property
Under equitable distribution, the marital assets/property that are the subject of a divorce include the couple’s bank accounts, investment accounts, pension and retirement accounts, vehicles, household furnishings, and their principal home and other real estate holdings (such as timeshares and vacation homes).
The biggest, most important asset to be addressed in mediation is typically the family home. Many factors have to be taken into consideration when drafting an agreement between the parties on the future sale or use of their home. If they have children, often they will want to retain the home so that the parent who has “residential custody” of the children remains there until the children are older. Specifics need to be worked out as to when in the future the home would be sold to a third party or perhaps purchased by one of the spouses.
Children: Custody and Parenting Arrangements
Most marriages include children. There are two types of custody that need to be addressed.
- Legal Custody: The right to make major decisions for the children related to their health, education, well-being, etc. Typically, both parents jointly share legal custody.
- Residential Custody: Awarded to the parent in whose home the children spend more of their time. If both parents have the children living with them an equal amount of time, then the parents are considered to be sharing residential custody.
The couple will develop a detailed parenting plan which provides a weekly and weekend schedule of when the kids will be living with each parent, as well as how holidays, vacations and other special occasions will be handled. Although these discussions may become heated, this discussion about the children especially benefits from the mediation process, since the mediator can help guide the couple to both practical and creative solutions.
Child support concerns children under the age of emancipation – in New York State that age is 21. A formula is applied that establishes the monthly child support payment based upon the number of children and the income of the parties. “Basic child support,” as it is referred to, is intended to provide the children with the necessities of food, clothing and shelter (that is, a roof over their heads). There are also “additional expenses” to consider, including unreimbursed medical costs, child care expenses, and college expenses.
Spousal support or maintenance is the term that has replaced the word “alimony,” which was used in the past.
The basic goal of spousal support is to insure that a less-monied spouse has enough money to live on after the divorce. For example, if one of the spouses stayed at home and did not work, so as to care for the children, then that spouse may need some financial support until he or she can get back in the game and find employment. That determination depends on such things as the length of the marriage, the health of the less-monied spouse, and the need to obtain training or other education.
A mediator is a third party neutral, trained in the craft of helping couples who are at odds to begin talking constructively to each other. As neither an advocate for husband nor wife, the mediator will help the couple explore a variety of options to address their unique circumstances.
Unlike a litigated divorce, in which the judge and lawyers dictate the process, mediation is a completely voluntary process. It is up to the couple whether they continue their discussions in mediation and ultimately sign a mediated settlement agreement. The couple’s ability to identify and self-determine the important issues sets the tone for the successful outcome of their mediated divorce.
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