Expectations During a Divorce

One of the biggest causes of anxiety for people considering a divorce is the unknown expectations about the process.  Elinor Robin explains in this Huffington Post article about some expectations to have:

  1. Expect the courts to move in strange ways — it’s not like TV portrays court.
  2. Expect that divorce will take you into uncharted waters where you will need extra support.
  3. Expect to enter a bizarre time warp — not everyone is at the same place at the same time emotionally or with decision making.
  4. Expect to feel like you are at a disadvantage — largely due to the relative speed of movement caused by #3.
  5. Expect change and expect more of the same —
  6. Expect that dislike for your soon-to-be-ex will be difficult to conceal.
  7. Expect a sense of failure (as to the failed relationship and the “wasted” years) and a sense of loss (of clarity, identity, connection and self-control).
  8. Expect that your children will be impacted by your divorce — mediation can help to minimize that.
  9. Expect that you’ll make mistakes — especially parenting and dating mistakes.

If you want to learn more about mediating your divorce, please contact me.

Mediating Difficult Divorce Situations

On May 9, 2014, I was honored to serve on a panel to discuss mediating difficult divorce mediation scenarios at the NJAPM Annual Divorce Seminar.  We talked though (and encouraged audience participation) situations including nesting, reimbursement requests for breast enhancement surgery just prior to the divorce, threats made by one party against the other in mediation and more.  Thanks to Joan Geiger for leading the panel and to my fellow panelists Pamela Zivari and Gabrielle Strich.

New Year’s Resolutions for Divorced Parents

The Huffington Post has a nice article on New Year’s resolutions for divorced parents.  Some are obvious, but not everyone may be thinking about these things.

Happy New Year to all my clients and readers!


Divorce from Bed and Board

New Jersey has a law on its books from 1907 that allow a divorce from bed and board, also called a limited divorce.  The law was intended to allow couples to legally divorce without also receiving a religious divorce if their religion prohibits divorce (such as Catholicism).  In essence, the law allows a couple to break their economic bonds and go their separate ways while at the same time they remain married and they are not allowed to re-marry.  Since NJ does not recognize legal separation, this is the closest the state comes.  This also could potentially be used by couples who want to divorce, have no plans to remarry and want to remain on their spouse’s medical insurance (note: some insurance companies may look at limited divorces as a perpetuation of a fraud — consult an attorney before attempting this).

There is a downside: either spouse can have the limited divorce decree converted to a standard divorce decree without notice to the other party.  Also, both parties must agree to the divorce from bed and board.

A limited divorce gives people more options, but it is important to understand all the nuances.  If you are interested in pursuing a mediated divorce, please contact me.

NJ Civil Unions, Federal Law and Taxes after United States v. Windsor

On June 26, 2013, the United States Supreme Court issued their opinion in United States v. Windsor.  In this case, a woman married in Canada to another woman was denied the same death (estate) tax benefits that married couples receive.  The benefits were denied under a federal law called the Defense of Marriage Act (DoMA) passed in 1996.  DoMA’s Section 3 defined a marriage for federal purposes being solely between a man and woman — hence why the federal government denied Edith Windsor the death tax benefits in her marriage. In a 5-4 ruling, the court declared that Section 3 of DoMA is unconstitutional.

New Jersey does not allow for same sex marriages but does have a civil union statute that resulted from Lewis v. Harris.  In that 2006 case, the NJ Supreme Court unanimously declared that prohibiting same sex unions violates the equal protection clause but in a 4-3 decision left it up to the legislature to determine how best to give same sex couples equal rights of married couples.  The legislature chose civil unions.  I’ve covered this topic previously here and here.

Yesterday, the Internal Revenue Service updated their policies to reflect the invalidation of DoMA Section 3 in Revenue Ruling 2013-17.  In a nutshell, the ruling mandates that legally married same sex couples must follow the same procedures as heterosexual marriages, regardless of where they live.  So if a same sex couple marries and resides in a state that does not recognize same sex marriages, they will have to file as unmarried for state taxes and married for federal — ironically, the exact opposite of how it previously worked for same sex couples in a state that did recognize their union.  Same sex married couples can also refile their taxes covering the last three years if beneficial to them.

For NJ (and other states) couples in civil unions, the ruling does not recognize a civil union (or domestic partnership) as equivalent to a marriage and thus for federal tax purposes civil union partners are not married. See the IRS’s FAQs.  While it is not explicitly stated, presumably other aspects of federal tax law will not extend to civil unions.  In a dissolution, this can impact equitable distribution of assets and liabilities (a tax free event for married couples but gift taxes may apply to civil unions) and alimony (where it may not be tax deductible for couples formerly in civil unions).

Post-Windsor, Garden State Equality filed an updated case against the state of NJ seeking a declaration that civil unions do not provide the same equality as marriage (see Garden State Equality v. Dow).  This IRS Ruling certainly helps that case, and I would expect to see amended filings shortly.

If you are seeking to dissolve your civil union, be sure to find a mediator who has expertise in this area as it is quite different from a heterosexual divorce.  Feel free to contact me with any questions.

Changing a Child’s Name After Divorce

The NJ Supreme Court recently gave a decision in Emma v. Evans. In this case the divorced parents shared legal custody of their two children but mother Jessica Evans was the parent of primary residence.  The children’s father, Paul Emma, discovered through school records that the mother had changed the children’s surname from Emma to Evans-Emma.  Competing motions ensued, escalating to the Supreme Court.

The Court ruled unanimously as follows:

In a dispute to rename a child of divorced parents, the party seeking to alter the surname jointly given to the child at birth bears the burden of proving by a preponderance of the evidence that the change is in the child’s best interest. Irrespective of whether the parents were married at the time of the child’s birth, the best-interests-of-the-child test should be applied in a renaming dispute without a presumption in favor of the custodial parent’s decision to change the jointly given surname of the child.

Applying the best-interests-of-the-child test in the context of a dispute over whether to change a child’s name requires a fact-sensitive analysis. Each case should be weighed on its merits. Some factors to consider are: the length of time the child has used his or her given surname; identification of the child with a particular family unit; potential anxiety, embarrassment or discomfort that may result from having a different surname from that of the custodial parent; and the child’s preference if the child is mature enough to express it.



A-Rod, MLB and Games of Chicken

New York Yankees third baseman Alex Rodriguez is no stranger to controversy.  A-Rod, although never positive on a drug test, has admitted to past steroid use and is now being investigated by Major League Baseball for obtaining performance enhancing drugs from Biogenesis.  Milwaukee outfielder Ryan Braun already accepted a 65 game suspension, presumably from his dealings with Biogenesis and its owner Anthony Bosch, and according to reports, several other players will accept 50 or so game suspensions later today or tomorrow.

A-Rod’s case makes for a good study on case analysis and settlement.  Reports indicate that MLB wants to make an example of A-Rod  by giving him a lifetime ban because he allegedly lied to MLB investigators.  A lifetime ban from the game would invalidate his current highest-in-baseball contract with $90 million remaining after this season.  A-Rod always has a right of appeal to an arbitrator or Baseball Commissioner Bud Selig depending on which rule MLB issues the suspension (though the latter is less likely given that MLB issued the suspension in the fist place).  The punishment, absent a deal, is reported to be handed down tomorrow.

So what is each side looking at?  A-Rod has a few choices:

  • Let MLB issue whatever sort of suspension it chooses then appeal.  The appeal could go either way or simply be reduced and an arbitrated ruling is not appealable in Court (with limited exceptions).  So if it is a lifetime ban, A-Rod risks never playing again and losing millions in salary.
  • Cut a deal with MLB, negotiations for which are apparently underway.  Reports say the negotiated deal would be a suspension for the balance of this season and all of next season.  This would cost him about $36 million in salary (his salary declines in the later years of the contract).  He would then try to make a comeback after nearly 2 years off — adding in his injury time — and at the age of 39 when most players are in decline.  But he would still collect the remaining money on his contract, or at least try to.  A-Rod would have some certainty.
  • He could take an injury retirement today before any punishment is handed down.  Presumably, MLB cannot suspend a retired player or invalidate such a contract after the fact.  If they tried, he could appeal or sue.  Reports indicate that A-Rod’s rehab from two hip surgeries have left him a shell of a player.  The Yankees would allegedly be happy that his controversy is gone and most of the balance of the contract would be covered by insurance — and they lose a diminished player earning a high salary.  A-Rod would miss out on a chance for greater glory in the all-time home run standings where he is currently in 5th place, along with millions in potential performance bonuses under his contract.

MLB also has a few choices as well:

  • Issue the lifetime ban and let the appeals process play out.  That could take a long time and it is not clear whether A-Rod could play during the appeal. If baseball loses the appeal, its ability to suspend players without any positive drug test is severely hampered.  On the other hand, if so many players are willing to accept 50 game bans without a positive test, Anthony Bosch’s credibility and Biogenesis’ records (the proofs against the players) must be very good.
  • Cut a deal.  This is probably the best outcome for baseball since it guarantees certainty and meets the interests in suspending all these players (namely game integrity and its perception).

In a mediation, these would be the types of things discussed privately with both sides and we would work towards a deal that works for everyone.  Ultimately the decision is up to A-Rod and MLB, as it is in their direct negotiations.  Most people are risk adverse — they don’t like taking risks.  And most people like certainty.  It will be interesting to see how this plays out.

If you’re in a dispute and can not work things out, mediation is a good way to try and gain a resolution.  Contact me to find out more.

Divorce or Hit Man?

Divorce, for most people, is not an easy process.  Mediation does make the process easier.

However, a woman in Michigan (and a former NJ resident) decided that hiring a hit man to murder her husband was an easier way to resolve the issues she had with her husband.  According to an article in nj.com and video released by the Muskegon County Prosecutors Office, Julia Charlene Merfeld, 21, said to an undercover police officer: ” when I first decided to do this … it’s not that we weren’t getting along.  But … terrible as it sounds, it was easier than divorcing him.  You know, I didn’t have to worry about the judgment of my family, I didn’t have to worry about breaking his heart, all that stuff like this. It’s, like, how I got a clean getaway.”

She pleaded guilty to solicitation to murder on June 27. However, her husband and intended victim asked that she get no jail time at all.

Instead, Chief Muskegon County Circuit Judge William C. Marietti committed to cap her minimum sentence at six years. The maximum can be anything up to life in prison, depending on Marietti’s decision at Merfeld’s sentencing July 30.

I guess we can now use the tag line:  Divorce mediation — a better way to stay out of jail!

If you are interested in staying out of jail and mediating your divorce, please contact me.

Conservation of Energy in Conversation

Seth Godin has some sage advice today….

Conservation of energy in conversation

If you escalate (cut off in traffic, angry at the gate agent, frustrated at your boss), you’ve just added (negative) energy to a conversation.

If you escalate (high-pitched enthusiasm, a hug, encouraging words), you’ve just added (positive) energy to a conversation.

Once the energy is added, it has to go somewhere. Often, the person you’re engaging with throws it right back, or even increases it. A talented, mature person might take your negative energy and de-escalate it, or even swallow it and permit the conversation to calm down or end. But don’t count on it.

Sure, you can ‘win’ a conversation by overwhelming your opponent with energy they can’t handle. But of course, they’re not your opponent and you don’t really win. Being aware of the energy you add or take from interactions is a sophisticated technique that radically changes the outcomes of the conversations that fill your day. Add the good stuff, absorb the bad stuff and focus on the outcomes, not the bravado.

The Value of a Good Mediator

A question (or sometimes criticism) I often hear about mediation is that the parties could just negotiate the solution out by themselves.  In some cases, this is true.  However, in the majority of cases which reach impasse, a mediator can be very helpful.

Let’s take the recent settlement in the National Hockey League (NHL) player lockout.  While I won’t present all the issue at stake, as background the owners locked out the players union when their last contract expired.  The sides had been talking for about 5 months with little progress and a lot of animosity built up.  The season was on the verge of complete cancellation.

Enter super sports mediator Scot L. Beckenbaugh, deputy director for the Federal Mediation and Conciliation Service (FMCS).  Beckenbaugh had already helped with resolving other recent sport related labor impasses (National Football League referees and National Basketball Association players).  Both sides in the NHL dispute credit Beckenbaugh’s persistence in leading them to a settlement.  Beckenbaugh essentially kept caucusing (shuttle diplomacy) with the sides until they were able to sit across from each other and finalize a deal (or at least the framework).

Here’s the most insightful quote about how the mediator helped the process from Winninpeg Jets defenseman Ron Hainsey (emphasis mine):

“Scot was great for a number of reasons. When it got to points where you didn’t know what to do next – or you had an idea but you didn’t know if it might upset the other side – you could go to him and talk to him about it and there was a way to work your ideas through a third party who was able to really help the process.

If you need assistance with a dispute, please contact me.