If one party takes their separate property and puts it toward a jointly owned home, they may be entitled, by NY law, to a separate property credit when divorcing. This can be difficult because people don't lead their married lives in anticipation of getting a divorce, so the separate property credit can have both practical and emotional consequences.
When you involve a consulting attorney, you want one who is a proponent of mediation. One who will help you acquire the skills and tools to advocate for yourself. The discussion in mediation can then be more mutual and result in terms that are more reasonable. In mediation, parties are empowered by making their own decisions and being an advocate for themselves.
You're going through a separation and your communication with your co-parent is awful. You fight about everything. You're wondering: ''How are we ever going to be able to agree upon major decisions about our children, and what are we going to do if we can't make any decisions?'' Your answer to that might be: ''Well, maybe I should just say I'll be the sole decision-maker and I'll ask for sole custody.'' While that sounds rational to you, it's not going to have the same effect on your co-parent.
If your spouse has some financial or legal knowledge that you don't, you may feel at a disadvantage in mediation. But you don’t have to give up all of the benefits of mediation just because of your spouse’s profession. The answer is to seek professionals who can help you to become empowered and feel comfortable in mediation, so you can properly advocate for yourself, and make the best decisions you can.
There are many special occasions to share in your life and the lives of your children. When divorcing, however, those occasions can become mini-battlegrounds, causing discomfort to visitors and your children. If you have children, you will be co-parenting for life. In mediation, we can build in ways to handle conflicts as the lives of you and your children move forward.
Strong emotions can arise when you are talking about distributing a pension. By explaining why each of you feels entitled to the pension, you can open the door to a productive discussion and start talking about options in a way that recognizes what you both need and what your expectations are. Through that discussion, you may be able to reach a settlement that's going to meet those needs and expectations.
To the extent that your pension was accumulated during the marriage, it would be treated like any other assets subject to distribution. But there may need to be more to the discussion than just what the law provides.
Since I recorded this video two weeks ago and now at posting, NY is opening up! Despite this great news towards normalcy, I think many people are still feeling unsettled. In his article in the New York Times, Adam Grant describes these feelings as “languishing.” You aren’t clinically depressed but you are still not thriving. It’s hard to focus and you just don't feel like working. Sound familiar?
{3 minutes to read} The idea of a prenuptial agreement is familiar to most people — an agreement that a couple can enter into before their marriage that can provide how property and debt will be distributed in the event of death or a divorce. It can also provide for paying or waiving spousal support. But what exactly is a postnuptial agreement, and why would anyone want one?
A postnuptial agreement is an agreement that a married couple can create to do the very things that a prenuptial agreement can do in terms of spousal support and distribution of property and debt. While you can include provisions about child support and custody, those provisions would still be subject to a court’s determination as to the best interests of the children.
Provisions regarding children aside, pre- and post-nuptial agreements will be enforceable if validly executed and the following factors are met:
The main reason why a couple would want to execute a postnuptial agreement is that it can be a way for them to continue the marriage. They can be going through a difficult time, and it’s possible that having financial matters settled can help them feel more inclined and comfortable in working with a mental health professional to remain married.
Here are some situations where I have seen postnuptial agreements benefitting a couple:
{4 minutes to read} I often receive phone calls from potential clients telling me that they have settled everything and just want me to write up their agreement. When faced with this request, I explain that this is not what I do and why mediation would still be important even if they have discussed and agreed upon terms.
Terms that were Not Addressed
You May Not Be Aware of the Law
You can find New York’s child support and maintenance calculators online, but you may not know what to do about income over the caps. Or that a budget is the best way to determine if the support calculations will be appropriate in your case.
In terms of property, you may believe that something is separate or marital based upon what makes sense. However, that may not be the case in the sometimes arcane application of the Equitable Distribution law.
Of course, you may opt out of certain provisions of New York law, but you do need to know what the law provides before you can consider doing so and make an informed decision.
You May Not Have Thought about the Future
In mediation, you will be asked questions that will test what you have agreed upon against changing circumstances, such as:
It is important that your Agreement encompass as much as possible in terms of changing circumstances so that you never have to return to mediation, or even worse, go to Court.
I think it can be helpful for clients to discuss some terms on their own if they are able to have productive discussions. Those discussions can enhance the mediation process, but they don’t replace it. Divorce Mediation is more than just agreeing on terms and writing them into a Separation Agreement. It is a process that ensures that you understand the legal and practical implications of the terms of your agreement, as well as both of you having your needs and interests met by those terms.