One of the great myths of divorce mediation is that mediators don’t take sides:
It is true we really are neutral in the sense that we don’t care whether you or your wife ends up with the bedroom dresser or the dining room table. As long as the two of you work together to come to terms you both think are fair.
But we don’t want our clients to arrive at an agreement that would be patently unfair to one of them in court.
As lawyers, we know the black letter divorce law of New York State. We can’t predict what will happen to you if you hire two lawyers to fight in court – except that you will pay lawyers fees north of $50,000.
But we can and do tell you the laws that govern divorce and you need to take into account when mediating your Separation Agreement. These are the most important examples:
- Child Support: There is a New York State statute (know as the CSSA or Child Support Standard’s Act) that requires you to do calculations based on income to arrive at the presumptive amount of child support the noncustodial parent pays.
• You can deviate from this number – but in mediation we have to discuss why you’re deviating and the amount. Courts are very concerned about the welfare of children and save their toughest scrutiny of your Separation Agreement for how the children will be supported.
- Temporary and Post-Divorce Maintenance: Maintenance: (The term for alimony) Both temporary and post-divorce, are governed by brand new formulas: Again you can deviate from these formulas; But a mediator isn’t doing his or her job if they don’t let you know about these guidelines. In fact, it has to be stated in your agreement that you were informed about them
- What’s mine is not mine? But what’s yours is yours? Not all assets a couple have are marital. We clarify the black letter law. Grandma’s broach – yours. Retirement funds that you acquired before and during the marriage; co-mingled inheritances; premarital down payments on a marital property – the rules and/or gray areas for these examples need to be clarified by your mediator.
- Mediation friendly attorneys cover the gray areas thoroughly. As neutral mediators, the only thing we don’t try to predict is the success of any party fighting over a term in court that falls within a gray area. But after you sign a mediated agreement, each parties goes to their own mediation friendly divorce attorney. These attorneys don’t litigate your case. For a nominal fee. their job is to make sure you understand your entire Agreement and to give you their assessment of how successful you might be in court fighting for a term that isn’t black and white. As a result of their review, they might suggest tweaking the Separation Agreement.
To paraphrase Roddy Dangerfield: Sometimes divorce mediation doesn’t get the respect it deserves: Couples should feel assured that neutral mediators (especially lawyers with knowledge of divorce law) understand the rights of those who are mediating. We don’t let you throw away these rights. Only when both parties are fully informed can you reach a truly fair agreement.