What if my spouse does not want to participate in mediation?
Mediation is a voluntary process. Both parties must attend the initial consultation and agree to participate. More often than not, a reluctant spouse who attends the initial meeting will agree to participate in mediation, if they feel comfortable with the mediator and the process.
What if I feel uncomfortable with mediation after I begin?
No matter where you are in the process, either party can terminate the mediation at any time for any reason. The mediator also has the right to do this. The person who terminates the mediation process is not obligated to divulge the reason for doing so.
When is mediation not appropriate?
In general, mediation is not appropriate if domestic violence, alcohol or substance abuse is involved or if any party feels uncomfortable and wants to terminate the mediation session.
Can my spouse and I agree on issues outside of mediation?
Absolutely. The mediation process encourages productive communication between couples in and outside of mediation sessions. If you and your spouse agree on your own, you are saving time and money and moving forward, which is always encouraged. The next time you return to mediation, we will discuss your points of agreement and do some reality testing and fine tuning, if necessary. Part of my job is to make sure you do not leave any important details out of your agreement.
What if I need to contact the mediator between sessions?
Please do so by email and copy your spouse in, as three-way communication essential to the mediation process.
Can I ever speak to the mediator alone?
If you ask to speak to me alone, you have requested a "caucus." Caucuses can occur for various reasons – usually when tensions build and communication breaks down during a joint session or when one person feels uncomfortable saying something in front of the other party.
I will speak to you alone, with your spouse's knowledge and I will always offer him or her a chance to speak to me alone as well. However, I will not reveal anything that you or your spouse have confided in me in a subsequent joint session without your permission.
What if we don't agree on all issues in mediation?
In order to get divorce in New York State, you must have an agreement as to all economic issues and all issues concerning children, if any. Even if you do not resolve every single issue, all points of agreement arrived at in mediation represent progress, as they can still be included in your final divorce agreement. This saves you time and money typically associated with protracted litigation.
Will the mediator give me legal advice?
No; as a mediator, I am a neutral third party who does not take sides or give legal advice. I will give you the general parameters of matrimonial law that apply to your situation and help you work out creative solutions that meet the needs of both parties.
I strongly encourage each of you to hire your own consulting attorney to give you legal advice and to review your agreement. Once an agreement is signed by both parties, it becomes a legally binding document enforceable in a court of law.
What if I agree to something in a mediation session and change my mind?
In mediation, no points of agreement are final until the agreement is signed. If you agree to something in a mediation session, you may change your mind at any time and for any reason before you sign the agreement.
What if I reconcile with my spouse?
If you reconcile with your spouse during the mediation process, it terminates immediately. If you reconcile with your spouse after you have already signed an agreement, you must both sign a notarized document indicating that you want to undo the agreement for it to no longer to be enforceable.
How many mediation sessions do I need to reach an agreement?
It varies but, barring any major complications, it generally takes between 3 and 6 mediation sessions to arrive at an agreement. The agreement details the division of all assets and debt and includes a comprehensive parenting plan, where applicable.
Will spousal support be addressed during the mediation process?
Absolutely. Spousal support is an issue unless both parties waive it because each of them are employed, in good health and able to support themselves. There are new guidelines for calculating both the amount of spousal support and the duration which we will explore in mediation.
Will child support be addressed during the mediation process?
Yes. In New York State, parents are expected to provide their children with basic child support (food, clothing and shelter) until they attain 21 years of age, with some exceptions.
Parents must also pay their pro rata share of add-ons. Add-ons include child care which enables the custodial parent to work, health insurance, unreimbursed medical expenses and, in some cases, educational expenses. Generally the non-custodial parent pays child support to the custodial parent (who also contributes to the support of the children). When parents have shared custody, New York Courts deem the parent with the higher income to be the non-custodial parent.
In mediation, I will help you calculate child support under the Child Support Standard's Act ("CSSA") based on each parent's gross income with certain deductions. The percentage of income payable by each parent depends on the total number of children (e.g., 17% for one child, 25% for two children, etc).
The CSSA requires the courts to apply the appropriate percentage to combined parental income up to $141,000. The courts have discretion to include additional income in the child support calculation as long as an explanation is provided. In mediation, couples can choose whether or not to follow the CSSA. If you deviate from the CSSA, you must include the reasons for the deviation in your agreement.
What's the difference between marital and separate property?
Marital property is any property that accumulates during a marriage from the date of the marriage to the date of separation. The date of separation can be the actual date the couple separates or the date a summons for divorce is filed or any other date chosen by a judge or agreed upon by a couple in mediation. Some examples of marital property are the marital residence, cars, bank accounts and investment accounts, retirement accounts, and credit card debt.
Separate property is property owned by either the husband or wife before the marriage and can include money, real estate and retirement assets. It is important to note that separate property can become marital when it is comingled. Other examples of separate property include personal injurie awards, lotter winnings and veteran benefits.
Will I get half of everything?
The division of marital assets and debt pursuant to divorce is known as equitable distribution. Equitable does not always mean equal. In long term marriages, defined as those that last 10 or more years, divorcing couples are generally entitled to half of all marital property. In shorter marriages, the law is not so clear and varies with every situation. In mediation, couples can choose to follow the law or make their own agreement according to what feels right to them.
Where will I get divorced?
The place a divorce is filed is called the venue. Venue is either where the plaintiff or the defendant reside or where the parties agree to file. Generally, your divorce will be filed in the county where you live.
Do I have to go to Court?
If you enter into a duly signed and notarized agreement, I will file uncontested divorce papers on your behalf and there is no need for you to go to court. After your uncontested divorce is filed, it will be signed by a Judge and entered into the County Clerk's Office. I will then send each of you a certified copy of your judgment of divorce.