In May of 2019, the New York Courts announced a system wide initiative to refer parties in civil cases, including matrimonial cases (with a few exceptions) to mediation. The implementation of Presumptive Mediation begins this month, September 2019, with each county in New York State developing protocols and guidelines in order to facilitate mediation in each respective county.

What does this mean for couples who litigate their divorce?
When a couple initiates a divorce proceeding, either party may request that a judge be assigned to their case and that a “preliminary conference” be held. This conference takes place at the courthouse and specific deadlines are set and orders are signed by the judge.

With the implementation of Presumptive Mediation, at the preliminary conference, the couple will now be referred to mediation as well. The parties may choose a mediator from the list provided by the court who will provide the first 90 minutes of mediation free of charge, or the parties may choose their own mediator, at their own cost. Participation in the mediation process will not act to delay the court proceedings – the case will proceed with the same deadlines in place while the mediation is ongoing.

What does the endorsement and encouragement of mediation by the Courts mean?
This initiative encourages the parties to shift their attitude and perspective by letting go of the idea that people going through divorce must be adversaries. With the implementation of Presumptive Mediation, the Courts have formally recognized that mediation is an extremely useful process that has been very successful in helping parties resolve their disputes, often with a win-win outcome.

What does this mean for the future of mediation?
For those of us who have been supporters and facilitators of the mediation process, this shift in the Court’s perspective is hopeful and promising. As mediators, we are and have long been advocates of a less adversarial and more communicative means of resolving conflicts. Now, the Courts too are embracing the mediation process and are encouraging parties to attempt problem solving by using a more collaborative and less confrontational method.

As always, if you have any questions about this article, the mediation process, or about whether mediation is right for your situation, I would love to hear from you.

If you litigate your divorce in the State of New York, the court will apply the Law of Equitable Distribution. The term “equitable” does not necessarily mean equal. This law provides that property acquired during your marriage is considered “marital property.” Marital property is divisible between spouses who are divorcing, and there are factors that courts consider when determining how to divide the marital property. Generally, the longer you are married, the more “equal” the division of property will be.

What most people do not understand about the Law of Equitable Distribution is that it does not matter who holds title to the property — if the property was acquired during your marriage, it is marital property. For example, retirement fund assets are typically in the name of only one spouse. However, under the law, this does not prevent the asset from being divided between the spouses. If there have been contributions to a pension fund, 401K, 403B, IRA or the like during the term of your marriage, those contributions are considered marital property. The same holds true for cars, real property, or any other assets titled to only one of the spouses. As long as the asset was acquired during the term of your marriage, it is marital property.

Separate property, however, is not generally divided between spouses upon divorce. Some examples of separate property include any assets accumulated prior to the date of marriage. It also includes personal injury settlement awards and property acquired by bequest; devise or descent; or gifts from a party other than the spouse during the term of the marriage.

The best way to work out a settlement that differs from what the law dictates is to provide an alternate means for the division of your property in either a pre- or post-nuptial agreement. These types of agreements give the parties the freedom to structure their own settlement pursuant to a legally binding contract. The parties define what marital property and separate property are, and ultimately take control of how assets are divided upon divorce.

In mediation, the parties are free to negotiate a settlement that differs from what the law provides also — and many of my clients do agree to “do their own thing,” so to speak. However, the parties must agree to deviate from what the law provides. In mediation, the parties often use creative means to structure their divorce settlement and, in the end, both parties are satisfied with the outcome.

Regardless of whether you have a pre- or post-nuptial agreement, mediation gives the parties control not only over the division of assets but over the entire process. This is substantially more appealing than putting such a personal matter in the hands of a judge who barely knows you or your circumstances.

If you have questions about the Law of Equitable Distribution or the mediation process — and how mediation can work to your advantage in structuring a win-win settlement — please reach out.

When your uncontested divorce packet gets submitted to the court, the proposed judgment of divorce submitted by your attorney/mediator should include a provision stating that the party may resume use of their prior name. Once the judge signs the judgment of divorce, the party wishing to change their name first needs to obtain a certified copy of the judgment of divorce from the County Clerk’s office. Usually the attorney/mediator handling your case will obtain that for you; but if not, either party may go to the County Clerk’s office, with proper identification, to obtain a certified copy of the judgment.

Once you have a certified copy of the judgment of divorce (this document will have a raised seal), you may bring that original document to your local Social Security office. Once your name is changed on your Social Security card, you can then change your driver’s license and passport. The next step would be to change the name on your bank accounts, insurance, cell phone account, utility company accounts, credit card accounts, and any other memberships or accounts that you may have. While some utility companies and credit card companies require documentation to effectuate a name change, not all do. A quick phone call can confirm whether the change can be done with or without documentation.

What do I need to bring to the appointment at the Social Security office in addition to the certified copy of my judgment of divorce?

For a full list of documents, click here.

What if I don’t want to change my name back?

There is no requirement to change your name back following divorce. Some clients want to keep the same last name as their children and may do so if they wish.

For any questions regarding changing your name following divorce, or to discuss what your judgment of divorce should look like, I would love to hear from you.

In calculating child support, the CSSA looks at the gross income of the parties, minus standard deductions such as FICA, and then calculates child support based upon how many children the parties have. For example, for one child, the percentage is 17 percent; two children, 25 percent; three, 29 percent; etc.

In New York, child support is meant to cover food, clothing, and shelter. All of the agreed-upon extra expenses and out-of-pocket medical expenses are typically shared pro-rata to the parties’ respective incomes.

For example, if the parties both have incomes of $100,000 per year, their expense-sharing ratio would be 50-50. In another example where the child support payer has an income of $100,000, and the child support payee has an income of $60,000, the expense-sharing ratio would be 60-40 respectively.

So the question is how does child support get recalculated over the years? The New York Domestic Relations Law provides that unless the parties have specifically opted out of the following provisions in a signed stipulation: “The court may modify an order of child support where a) three years have passed since the order was modified or adjusted, or b) there has been a change in either party’s gross income of 15 percent or more since the order was entered or last modified or adjusted.”

As with most things in mediation, the parties can agree to come up with their own recalculation method. In other words, they don’t need to do what the Domestic Relations Law says and may agree upon a calculation method that best suits their needs.

For example, in circumstances where the child support payer has a fluctuating, commission-based salary, the parties may want to recalculate annually. The parties may also want to consider including a cost-of-living increase provision. In cases where there are multiple children, they should consider recalculating as the older children emancipate. It is also a good idea to have a provision in place that triggers a recalculation should there be a significant increase or decrease in either party’s gross income.

In circumstances where the parties have agreed to waive child support and share the expenses of the children, it is not only important to provide details as to what expenses are being shared, it is also wise to provide a recalculation method for the expense-sharing ratio should there be an increase or decrease in income.

The method for recalculation should also be included in the parties’ agreement. For example, the parties may agree to exchange tax returns for the year prior to the recalculation in order to determine incomes. In the event the parties are unable to reach a consensus on child support, in mediation, the parties typically agree to seek the advice of a financial neutral, or return to mediation, prior to seeking court intervention.

For more information about this topic, or why mediation may be right for you, please reach out, I would love to hear from you.

When one of the parents is not residing in the marital home, a great cost savings option is to stay with friends or family members. If that option is not available, the parents may decide to rent a small apartment for each parent to use when they are not residing in the marital home.

Some of the benefits of a nesting arrangement include:

• The children continue to live under one roof (and the same roof as before the divorce), keeping their lives more consistent.

• Saving money, especially in circumstances where the parents don’t need to rent an apartment.

• Allowing the children to stay in the same school district and keeping the same friends.

Potential cons of nesting:

• The parents are still sharing a living space (and potentially two living spaces).

• There could be privacy issues, especially if one party has a significant other who would be spending time at the shared apartment.

• Nesting is likely not going to work for high-conflict couples.

The most important thing for parents to remember about this type of living arrangement is to first establish the ground rules and set some boundaries. If possible, the parties should also come up with a plan to designate exclusive living spaces for each parent in both the marital home and rental apartment. It’s also important to have a conversation about significant others and, of course, sharing the bills for both the marital home and the shared apartment.

If you would like to learn more about nesting, or have any other divorce-related questions, please reach out.