Archive for October, 2009

We’ll Mediate McCourt’s Divorce!

Thursday, October 29th, 2009

We’ll even settle it.  From the sound of this article, it’s a hot mess. http://sports.espn.go.com/mlb/news/story?id=4601465. It’s hard to believe these folks once loved each other.

But remember, the opposite of love is not hate. It’s “I don’t care.”  Nothing says “I still have feelings about you” like all of this fighting in court.

But where will it leave them?  Hundreds of thousands of dollars of legal fees, a couple of years in court, and then lovely stories like the one above about the case in the press?  Why would anyone sign up for this?

Good news. There’s a better way. Mediation. Of course, you have to be ready to have an agreement and you have to want to have an agreement for mediation to work (mediators can handle the fighting part). The McCourts don’t sound like they want an agreement. Not at this point. Maybe in a few months.

We’ll be here.

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How Do I Manage My Anxiety at this Time?

Wednesday, October 28th, 2009

As discussed earlier in this chapter, most states have a mandatory waiting period before people can be divorced, even if both parties have completely resolved all of their issues. This period is sometimes referred to as a “cooling off” period, ostensibly designed so that people do not make hasty decisions to divorce. While you are waiting, a pervasive anxiety is natural. Anxiety is a nonspecific, persistent feeling of uneasiness in its milder form; a more intense version is filled with dread and fears. This period of the unknown is when most people turn off the trail of a rational divorce and begin bushwhacking through unmarked territory. Such stumbling about can lead you to spend many wasted hours feeling lost, frightened, and looking for a way back to the familiar.

 

Use this period to plan rather than to plot. Fill it with the productive work that leads to negotiation. Make your lists of assets, property, debts, and future desires. Get your priorities straight, knowing what you can and cannot live without in terms of living arrangements, money and property issues.

 

Set up and try interim agreements with your spouse, so that you learn what really matters to you. However, do not try various arrangements too flippantly. In many cases, post-divorce financial and child-related arrangements, yet to be discussed, are remarkably similar to the interim agreements couples set. Such agreements often lead to decisions by parents, and by the courts, that favor consistency and maintenance of current conditions, rendering it difficult to effect a major change. If you have agreed to pay $500 per month for alimony in the interim period, your claim that you cannot afford that amount will be difficult to prove subsequently.

 

One characteristic of the legal system that riddles this period with anxiety is that the legal process is slow, especially compared to individual desires to “get this over with as soon as possible.” You will feel on some weeks that nothing is happening in your case. Check in with your spouse and attorney. Perhaps there is some way you could help speed up the process, maybe documents are needed that you could amass more quickly, or perhaps there is nothing that can be done at this time and your spouse is working on his or her part. Knowing the status of your case and what to expect in terms of timing should help. For some common sense care for anxiety, see http://www.holisticonline.com/Remedies/Anxiety/anx_common_sense.htm. For 9 tips for managing anxiety without drugs, see  http://www.johnshopkinshealthalerts.com/reports/depression_anxiety/1156-1.html.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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When Negotiations Break Down

Monday, October 26th, 2009

When negotiating, avoid handing down ultimatums. They rarely have the intended effect, and usually create deeper resentments. Contrary to popular opinion, do not pad your requests so that you wind up with what you really wanted from the beginning. This creates a sense of dishonesty that makes it hard to concede on other issues, since guessing what is really important to each party becomes a central focus. Then assumptions and worst fears creep in. Be clear about what you want, and then know what you can give in on and what you can’t.

 

If negotiations are breaking down, there are several remedies that are effective. If you both want the same outcomes, such as having the kids with you on Christmas day, try adding some additional ideas to the negotiation rather than convincing the other you have the best reasons. One idea would be to arrange two events for Christmas day, such as an early morning with one parent and a later dinner with the other, with each having its special charms. When you really want something your spouse is not giving in on, try sweetening the pie. If you already offered her silver for the antique mirror you want, try offering the silver and the china for the mirror.

 

Other techniques include changing perspectives, so that you each argue for the other person’s point. If both sides don’t seem equally valuable to you, then they may not be equitable.

Agree in theory about a decision, but do not make procedures at the same negotiation. Agree that you will divide your non-liquid assets between you, but do not decide which accounts or parts of the pension will go to each of you. Agree on a next step rather than outcome, i.e., you will each talk to your employer about a change in work schedule, without deciding who will change their schedules and when. Pose two or three options, and try each for a specified amount of time. Often a trial run will help you decide an issue based on situations you did not anticipate. Some agreements are built with contingency plans: if you get your raise at work, then you will increase your child support by $50. These plans depend on events that are likely but not assured. Negotiating one step at a time, with built in contingencies, may seem slower but it reduces the likelihood of false starts and retracing steps later. Having actual experience with options when a decision is made builds confidence in decisions. They lose their aura of the unknown, with fears that accompany unfamiliarity. For some conflict resolution tips for divorcing couples, see  http://www.divorcenet.com/states/massachusetts/conflict_resolution_tips_for_divorcing_couples. Another good article on negotiating your settlement appears at http://www.insidedivorce.com/divorce-help/How-to-negotiate-your-divorce-settlement/?stage=A5D0E3C493500B427E453CDBDD04B1F2&subject=B0875360A0906896DA25C58745F8D4D1.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Negotiating for the Long Haul

Friday, October 23rd, 2009

Understanding negotiation leads to placing each conflict resolution opportunity into a broader context. Each conflict is a part of a whole negotiation strategy. The bigger picture requires a broader lens, like adding a panoramic lens to your camera to get a broader view. In addition to resolving individual conflicts, try looking at the whole picture.

 

Make a list of all the things you desire from the set of negotiations, and prioritize them from most to least important to you. Asterisk those items you could concede. It is important to give some things up without making a demand for something in return. You must have something to give that allows the other person to feel supported. The more generous you appear, the more likely you are to gain concessions.

 

Therefore, be clear from the beginning what you are prepared to give up, as a gift. When the other person offers you something, express your appreciation so that his or her gift does not feel invalidated. This increases the likelihood that such behavior will occur again. After every successful decision, write it down and give copies to all parties (both spouses and attorneys) to make sure that everyone has the same understanding of the agreement that was reached. Too often people make progress in negotiations and then disagree later about what was actually said and meant, building resentment as each person accuses the other of stalling and wasting time. If you are the person most eager to divorce, you can circumvent your partner’s stall tactics, which may not even be conscious. For a good article on negotiating in a divorce, see http://www.divorceinfo.com/negotiating.htm.

                                   

Another reason negotiations break down is because people take entrenched positions out of fear. For example, some mothers refuse to let the kids go away with their father because they are afraid the children will want to spend less time with them because their father offers more exciting weekends. Discussing this, or ensuring that Mom has money reserved for special events with her children, alleviates the fear. For some tips on conflict resolution for divorcing couples, see  http://www.mediate.com/articles/kaufmano1.cfm.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Negotiating with Your Spouse: Skills and Tips

Tuesday, October 20th, 2009

One antidote for creating static, negative images of your spouse is to practice negotiating for what you want and need. If you are ready to look beyond your anger, then you can seek equitable solutions to your conflicts. To accomplish this, you must be ready to change the desired outcomes of your conflict. Roger Fisher and William Ury’s book, Getting to Yes: Negotiating Agreement Without Giving In (http://www.amazon.com/Getting-Yes-Negotiating-Agreement-Without/dp/0140157352) teaches ways to negotiate win-win solutions to conflicts. They suggest that in order to create a mutual win-win position, “The first thing you are trying to win is a better way to negotiate.”

 

Negotiating rather than fighting becomes a winning proposition on several levels:

 

you develop skills that will serve you in this relationship and others after the legal process is over

you get what you want in a positive atmosphere with less likelihood of later retaliation

you want your spouse to feel he can get what he wants so that you do not push him towards an attorney interested in strong arm tactics.

 

The basic methods for are designed to create win-win outcomes based on mutual interests. The main tenets described include focusing on needs rather than positions. “I want to be an involved father with time spent each week with my children” is a need. “I want joint custody with equal time” is a position. You must be ready to look at both sides, using the art of paraphrasing and repeating what you have heard until both persons feel their “story” is understood. Problems must be described in neutral terms rather than in blaming language. “You are never on time to pick up the children on your day” is a blaming way of presenting the problem. An alternative way is: “On Tuesdays, I am supposed to leave for work just when you are due to pick up the children. When you are not on time, I am late for work and I get into trouble.”  This definition of a problem has a greater chance of being solved because it engenders less defensiveness. For a terrific article on how to stop being defensive, see  http://www.nonstopenglish.com/reading/articles/Get-Out-of-Jail-Free-Stop-Being-Defensive.asp.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Friend or Foe?

Friday, October 16th, 2009

The waiting period between serving your spouse with divorce papers (or being served) and the time you reach settlement or decide to go to trial, often feels like the longest leg of your journey. The newness of the divorce has worn off, and consequently the shock and denial have worn thin. The reality of a divorce seeps in like cold rain, oozing through the edges of your coat, until your whole body feels cold and achy.

 

Most people find this period to be the fundamental juncture, as the legal directions of your divorce are set, and with them, the emotional state of your ending marriage is tested to the hilt.

 

You may not be ready or interested in being friends with your spouse, but you also want to prevent him or her from becoming an opponent in the divorce, if at all possible.

 

Some of the emotional issues that lead people down the path toward conflict stem from how each person feels about how the divorce was set in motion. If you have moved toward ending your marriage with grace thus far, it will be easier to resolve legal issues than if you have not taken your partner’s feelings and needs into account. But even if you have, the confluence of angry and hurt feelings that are part and parcel of ending a long term relationship provide a huge stumbling block to achieving a supportive divorce.

 

For all these reasons, it is understandable to feel yourself pulled toward being exclusively negative in your opinion about your spouse. But there are ways to stop yourself from going down this slippery slope. List all your spouse’s best qualities, then list those you like least. Try to find at least one positive for every few negatives. If your partner is stubborn and self-righteous, she might also be tenacious in her ideas. This tenacity might benefit your children, in the form of unwavering loyalty.

 

Remember the reasons you married your spouse to begin with. Perhaps try some of the gratitude exercises listed at http://www.selfhelpmagazine.com/maheu/?p=50. Make a gratitude adjustment as described at http://www.psychologytoday.com/articles/pto-20060227-000004.html.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What Role Does Fault Play in a No Fault Divorce?

Tuesday, October 13th, 2009

Judges and courts aside, assignment of fault is a motivating factor in the reason spouses seek a divorce. Whether its an affair, lack of respect, domestic violence, falling out of love, or more subtle issues, “fault” is an issue in almost every decision to divorce. These feelings of “I didn’t break up the marriage, he/she did” are almost universal and often the motivation behind destructive behavior during the legal process.

 

Many clients feel that they must explain the reasons they want a divorce to their spouse, and this explanation includes a list of past sins. Confessing mistakes and shortcomings often makes people feel better (e.g., less guilty), and it can help them forgive themselves for their perceived failures in the marriage. This confession temptation bites early, but can continue throughout the case. By and large, the most popular sin confession is an affair.

 

Although admitting an affair may help you to feel less guilt, beware that it may be used against you in your divorce. It can be considered by most courts in dividing assets and determining spousal maintenance. Worse, it can add fuel to your spouse’s already burning fire of hurt, rage, and revenge. Discussing an affair with your spouse can have many beneficial psychological outcomes, but your motivations and timing should be considered carefully.

 

If you’re involved in an affair or other intimate-type relationship when you decide to divorce, put the relationship on hold until your case is finished. If the person with whom you’re involved cares about you, he or she can wait until your divorce is finalized to continue your relationship. It is not worth having an illicit relationship become part of your case. The court process also can put undue pressure on a relationship that might feel healthier and serve you better if timed appropriately. For another good article on how “fault” can impact the division of marital assets, see http://www.divorcenet.com/states/rhode_island/no_fault_divorce_in_ri. Terrific information on Equitable Distribution and Community Property Laws is also provided at   

https://ritdml.rit.edu/dspace/bitstream/1850/927/4/Chapter-17.pdf.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Property Division in “No Fault” Divorce?

Friday, October 9th, 2009

Even in “no fault” divorce states, fault is one of the factors which the court may consider in dividing assets. That said, most courts will divide assets and property evenly between the parties unless there is some overriding reason why a 50/50 division would not be appropriate. Generally the division will not vary by more than 10% based on reasons why the marriage broke down, or punishment for the spouse who caused the marriage to break down. The judge is concerned with dividing your assets according to the law, and in a way that’s fair to each of you. He or she is unlikely to be overly concerned about hurtful words, or even affairs, because such  circumstances connote many marriages that fail. An experienced judge has heard innumerable tragic stories. Only an unusual or dramatic scenario captures the attention of most judges, a scenario that goes beyond an office affair or devastating argument.

 

The relative disinterest by the court in fault has changed drastically in the past 20 years. Previously, one of the main reasons for an unequal property division was fault. The reason that the marriage broke down was attributed to one party and the punishment for that was a lesser share of the marital property awarded that spouse. That scenario becomes less common over time.

 

By focusing on fault issues, you can lose your path toward your ultimate goal in the case. Trials and court procedures are not designed for vindication, revenge, or clearing ones name. They’re designed to divide assets fairly between two spouses, taking into account your individual circumstances. As unfair as it seems, fault rarely constitutes a reason in the court’s eyes for dividing assets unevenly. Accepting this now will save you much heartache later, as well as time and money. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Transfer of Property between Spouses

Tuesday, October 6th, 2009

The transfer of property between you and your spouse as part of your divorce is not a taxable event as long as the transfer takes place within one year after the date of your divorce. That means that all of the settlement issues you’re discussing in terms of who-gets-what won’t have any immediate tax consequences.

 

The non-taxability of transfers between spouses also applies to stocks, bonds, mutual funds, and any other property which you owned jointly and now one of you will own that same property separately.

Capital gains taxes and transfer taxes (in the case of real estate or other titled assets like (boats and cars) will apply if you later transfer that asset to a third party, either by sale or gift. Example: Bob and Jill jointly own a house which they purchased for $100,000, but is now worth $175,000. They also own stocks worth $50,000 which they bought for $30,000. Bob transfers the house to Jill and Jill transfers the stocks to Bob. Both assets have appreciated in value, as indicated above. Neither of these transfers triggers any tax.

 

Bob then sells the stock (to a third party) two weeks later to pay off some debts. He will owe capital gains tax on the $20,000 appreciation of the stocks, typically about 33%.

 

Jill sells the house two months later to a third party, as well. Because the appreciation is $75,000, she wouldn’t owe capital gains tax because the first $250,000 of appreciation is exempt from capital gains tax, but she would owe any transfer taxes which are assessed by her county or town.

For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Creative Solutions with Your Mortgage

Friday, October 2nd, 2009

Let’s say your home is worth $100,000.00 and there is an $80,000.00 mortgage on the home, leaving $20,000.00 in equity. You and your spouse have agreed to divide your assets 50/50 and you are going to keep the house, but you are unable to pay your spouse for his or her $10,000.00 interest in the home. You agree to execute a mortgage in favor of your spouse that you will pay in a lump sum in 10 years. This mortgage will be documented by your attorney, who will draft the proper papers, and record them on the land records.

 

If, however, the housing market falls and your house is suddenly worth $70,000.00 when it comes time to pay this $10,000.00 mortgage, you must pay your spouse the $10,000 from the divorce agreement even though the value of the house is less than it was at the time of your divorce. This is also true even though the amount that you owe on the mortgages ($80,000 on the first mortgage and $10,000 on your spouse’s mortgage) may even be more than what you can expect to get for the house in the event you sell it. This is a risk that you take by not paying your spouse or dividing the asset immediately. Generally, real estate markets go up, but that isn’t always the case.

 

A creative way of dividing the equity in the house is for spouses to record a notice of equitable interest against the land records, which gives the spouse relinquishing his or her ownership interest in the house a right to a certain percentage of the equity in the house when it is sold. So, if you agreed that the house would be sold in 10 years and that each spouse would receive 50% of the equity, if the house was worth $70,000.00 in 10 years and the mortgage owed was still $70,000.00 in the example above, then your spouse would not receive any money, and you would not have to pay your spouse more than your house is worth at the time that the equitable interest becomes due.

 

Yet, if in the future the house is worth $300,000.00, and the mortgage has been reduced to $70,000.00, then your spouse would be entitled to share in one half of  the $230,000.00 profit, even though he or she hasn’t been cutting the lawn or making the mortgage payments.

 

Sometimes, in these circumstances, the spouse remaining in the house accrues a certain amount of credit for the fact that he or she has performed the maintenance and paid down the balance on the principal owed on the mortgage over time. You may also wish to make provisions with respect to repairs and maintenance on the house, having you and your spouse share expenses for big ticket items such as the furnace, water heater and roof. If both spouses are to share in the appreciation of the house (or depreciation), they could both share in the maintenance costs.

 

These kinds of situations can get sticky emotionally and are not as straightforward as simply refinancing or selling the house at the time of the divorce, but they may represent a creative solution that will help you settle your case. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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