Carolyn Zenk, Attorney at Law

Divorce Mediation

GOAL OF DIVORCE MEDIATION: The goal of divorce mediation is usually to work out a separation agreement for a couple. The couple usually retains a divorce mediator/attorney together and split the expenses.

EXPECTATIONS OF THE MEDIATOR: The couple is usually expected to pay a retainer, which may range from a few hundred dollars to several thousand dollars depending on the complexity of the case and sign a retainer agreement when the couple initially meets with the attorney. This is standard practice. In fact, a retainer is required by the Lawyer’s Code of Ethics. You are entitled to fully understand the retainer agreement and ask your mediator about it before you sign it.

PROCEDURE/SETTING: The couple usually meets at the attorney’s office and avoids the stressful atmosphere of the courtroom. The divorce mediator will usually explain the rules of engagement at the first meeting. The mediator will explain her hourly rate and what that rate includes.

HOURLY RATES FOR ATTORNEY/MEDIATORS: The hourly rates for Attorney/Mediators range from $250 an hour to $450 an hour. My firm charges$250 an hour and sets a cap on the overall price for the mediation, which is never exceeded.

THE FIRST MEETING: I usually explain the mediation process to my clients at the first meeting. I go over the law with respect to divorce, child support, and maintenance with you. I acquaint my clients with the statutes themselves. I always give my clients a copy of the applicable statutes so that they can study the rules for themselves. This gives them a great edge in understanding their own mediation process. I generally send the couple home with the statutes and ask them to assemble important financial information for our next meeting and to work out a visitation schedule if they have children. This usually involves looking at their schedules and a calendar for the school year, which sets forth the various school holidays.

SECOND MEETING: At the second meeting, I usually ask the clients about their circumstances. We talk about the number of children they have, the custody arrangement they would like to see, and a visitation schedule. The issues the mediation generally covers include: the division of marital property, i.e. equitable or fair distribution in New York, what property is considered “separate” property and can be kept by each party. We discuss the test for child custody in New York (Test: The best interest of the child) and the factors courts consider to determine residential custody. We discuss visitation preferences and the couple’s schedule. We talk about health and life insurance. We discuss the respective circumstances of the couple to determine whether either spouse would be a candidate for spousal support (maintenance, once known as alimony).

The couple usually has a lot of questions, which I answer. If I do not know the answer to a legal question, the couple can commission a legal memo to get an idea of how the courts are currently handling the issue that concerns them. In this way, they have a context to determine whether or not a proposed solution to a problem is fair.

PROCEDURES IN GENERAL: Each member of the couple is given an equal chance to speak. I usually allocate a specific amount of time for each spouse. During that time, the other spouse is directed not to interrupt their partner. If it is in the couple’s interest, and they agree, I talk to each member of the couple separately. If one spouse is given private phone time, the other spouse is usually given equal time.

THE MEDIATOR’S ETHICAL OBLIGATION: A mediator must act neutrally and cannot favor either side when mediating a separation agreement. If one member of the couple decides not to mediate, the mediator cannot represent either side in a divorce since this would be a conflict of interest. The separation agreement cannot be grossly unfair or it can be stricken down by a court. Since this is the rule of law, couples can be confident that a given mediation agreement cannot be lopsided.

HOW LONG DOES THE MEDIATION TAKE?: The mediation itself usually takes about one to two hours a session. Several sessions are usually required. I often ask the couple to fill out a “net worth statement” when they go home after the first or second meeting (The courts require this during divorces. This statement sets forth the respective financial circumstances of each party.) to get a basic idea of the assets involved in the

marriage and their appropriate distribution. I also often ask the couple to provide independent proof of salary, bank account, and pension information just as a Court would. In this way, both partners can be assured that financial figures have a basis in reality.

ARE THERE SEPARATE COSTS OR APPRAISALS? It may be necessary to appraise certain marital property during mediation. For example, the marital home may have to be appraised. Pensions may have to be appraised. In some instances, degrees earned during the marriage may be considered marital property and need appraisal. These charges are separate and not included in the mediation costs. These appraisals are conducted by independent experts. Sometimes couples choose to place a value on their assets themselves. The couple may also be asked to pay for filing costs, which are not very expensive.

DRAFTING A SEPARATION AGREEMENT. Once the mediation is complete, the mediator drafts the separation agreement. I always send it out to the couple. The couple reviews it to make sure it reflects their wishes. The mediator may identify additional issues that need to be tackled and call the couple to discuss these issues over the phone or ask that they return for another session. Each member of couple can seek independent legal advice before signing the separation agreement. In fact, mediators often encourage this. Once each party signs the separation agreement it is binding upon him or her. New York law requires that the couple live pursuant to the agreement for a minimum of one year. At the end of the year the separation agreement can be converted into a divorce if and only if the couple has abided by it for the full year.

ARE YOU DIVORCED ONCE YOU SIGN A SEPARATION AGREEMENT? For most practical purposes, you are as good as divorced once both sides sign a separation agreement. A separation agreement essentially contains what a divorce would contain, including division of marital assets, division of debts, where each spouse will live, determinations of what is separate property, custody of the children, visitation schedule, and maintenance (if applicable), and child support. However, there are a few exceptions to this rule. For example, you obviously cannot remarry during the year of separation. Should you die during the one year separation, your spouse may still inherit as though you were married. Your spouse may still be able to collect health insurance benefits, depending on your policy, until the divorce. Of course, if you don’t live up to your side of the agreement, you can endanger it.

ISSUES HANDLED DURING A MEDIATION: The separation agreement handles the following issues: child support, custody, visitation, health insurance, life insurance, a division of marital assets and debts, and possibly, but not necessarily, spousal support. The couple can mediate any issue that concerns them.

ADVANTAGES OF MEDIATED DIVORCE OVER LITIGATED DIVORCE: A mediated divorce has tremendous advantages over other approaches to divorce, such as a

litigated divorce, which tends to be much more expensive and contentious. See my article on this web site concerning the various ways to divorce in New York. [Place hyperlink here to “Ways to Divorce in New York State]

The above article represents my opinion only and should not be construed as legal advice. A couple should still seek the skills of an attorney/mediator to determine how the law will apply to them given their individual circumstances.

WHAT IS EQUITABLE DISTRIBUTION? The Domestic Relations Law in New York generally determines how a judge will split up a couple’s property. Legally, a judge must split property in an “equitable” fashion. This term should not be confused with an equal fashion. For example, if a couple accumulated $100,000 of marital property during a marriage, do not assume that each partner will get half. All things being equal, the property would be split in half. However, all things are rarely equal. For example, it may be equitable, where a woman with only a high school education raised five children for twenty years, and enabled her husband to obtain an M.D. during the marriage to be given the entire $100,000 in recognition of her contributions to the marriage.

IMPORTANT TO SEEK LEGAL ADVICE: It is important to seek legal advice to get a good idea of how your property will be split up because the rules are complex and ridden with exceptions. This article is for general purposes only; it is not legal advice.

GENERAL RULES FOR EQUITABLE DISTRIBUTION: There are several generally applicable rules for equitable distribution. For example, property acquired during the marriage is presumed marital (i.e. subject to division or equitable distribution) if it was acquired during the marriage and before the divorce was filed. Marital property would include such things as bank accounts, a home purchased during the marriage, stock portfolios, pensions, IRAs, 401ks, and degrees earned during the marriage.

WHAT IS SEPARATE PROPERTY? CAN SEPARATE PROPERTY BECOME MARITAL PROPERTY? In general, property that one had before one was married is considered separate property, not subject to division. For example, if you can prove you had a sizeable bank account before you were married, and you never co-mingled these funds with marriage funds or your partner’s money, this might remain your separate property. Inheritances and gifts (except gifts given to both spouses or from one spouse other) given to one person are considered separate property.

Property that was once separate may be considered marital by the courts under several scenarios. For example, if you were once married, and you and your spouse placed your earnings into your personal bank account, this money may be converted to marital property. A home purchased before the marriage by one party, but treated as marital property after the marriage can present particularly complex legal problems and is best sorted out by an attorney.

IS NEW YORK A TITLE STATE? DOES IT MATTER IF AN ASSET IS NOT IN MY NAME? New York is not what is considered a “title state.” Therefore, just because an asset is in one spouse’s name, does not mean it will necessarily go to that spouse. However, you should always be careful when you consent to putting property in your spouse’s name because it can affect a judge’s decision regarding whether the property will ultimately be considered separate or marital.

How to Determine Child Support in New York

WHO PAYS CHILD SUPPORT? HOW MUCH IS IT IN GENERAL? Child support is paid to the parent who lives with the children by the parent who does not live with the children.

Child support is usually based primarily upon the most recent filed tax return (although courts will base it on actual income if the return has been falsified.) Courts also will look back several years in some instances.

Child support is based upon gross, not net, income, which comes as a surprise to some individuals. The amount of child support is determined by the New York statutes, which give specific guidelines. Indeed, a separation agreement must recite the child support that would have been due under the Child Support Standards Act to be valid in New York. (One more reason not to “do-it-yourself.”) Couples can modify child support by agreement to some degree, but Courts keep a close eye on the welfare of children.

DO THE COURTS BASE CHILD SUPPORT ON THE NUMBER OF CHILDREN THE COUPLE HAS? In general, the amount of child support is determined by calculating a parent’s gross income, after subtracting FICA, by a percentage rate that corresponds to the number of children the couple had. If the couple had one child, 17% is used. If the couple had two children 25% is used. If the couple had three children 29% is used and so forth. The noncustodial parent my also be required to pay a percentage of the child care expenses (for example babysitting or day-care costs) and uninsured health care expenses on a pro rata basis based upon their income as compared to their spouse’s income. The courts usually make sure the children are covered by health insurance.

(Child support determinations are complex. It is recommended that one use a divorce attorney before attempting to figure out how much child support one should pay. This is especially important when one considers that stating this figure wrongly in a separation agreement could invalidate the agreement. The above is not to be construed as legal advice.)

Carolyn Zenk, Attorney at Law, is a Certified Mediator, who has handled dozens of separation agreements and several litigated divorces. She prefers to mediate when possible because she believes it is usually in the client’s best interest. She practices in Hampton Bays, New York. You can call her for a free fifteen minute phone consultation at 631-723-2341.

How to Determine Child Support in New York State

WHO PAYS CHILD SUPPORT? HOW MUCH IS IT IN GENERAL? Child support is paid to the parent who lives with the children by the parent who does not live with the children.

Child support is usually based primarily upon the most recent filed tax return (although courts will base it on actual income if the return has been falsified.) Courts also will look back several years in some instances.

Child support is based upon gross, not net, income, which comes as a surprise to some individuals. The amount of child support is determined by the New York statutes, which give specific guidelines. Indeed, a separation agreement must recite the child support that would have been due under the Child Support Standards Act to be valid in New York. (One more reason not to “do-it-yourself.”) Couples can modify child support by agreement to some degree, but Courts keep a close eye on the welfare of children.

DO THE COURTS BASE CHILD SUPPORT ON THE NUMBER OF CHILDREN THE COUPLE HAS? In general, the amount of child support is determined by calculating a parent’s gross income, after subtracting FICA, by a percentage rate that corresponds to the number of children the couple had. If the couple had one child, 17% is used. If the couple had two children 25% is used. If the couple had three children 29% is used and so forth. The noncustodial parent my also be required to pay a percentage of the child care expenses (for example babysitting or day-care costs) and uninsured health care expenses on a pro rata basis based upon their income as compared to their spouse’s income. The courts usually make sure the children are covered by health insurance.

(Child support determinations are complex. It is recommended that one use a divorce attorney before attempting to figure out how much child support one should pay. This is especially important when one considers that stating this figure wrongly in a separation agreement could invalidate the agreement. The above is not to be construed as legal advice.)

Carolyn Zenk, Attorney at Law, is a Certified Mediator, who has handled dozens of separation agreements and several litigated divorces. She prefers to mediate when possible because she believes it is usually in the client’s best interest. She practices in Hampton Bays, New York. You can call her for a free fifteen minute phone consultation at 631-723-2341.