Over the course of thirteen years of working with clients who have elected mediation as the vehicle for their separation or divorce I have discovered that some basic facts regarding separating are not known by my clients. Below are some of the more important “bits and pieces” that some people seeking divorce do not know.
Some clients still believe that you need to have a “reason” or “fault” such as cruel and inhuman treatment, abandonment or adultery in order to commence a divorce proceeding, or that you need to wait a year before you can legally seek a separation. None of that is required. In 2010, New York enacted “no fault divorce” whereby proceedings for separation and divorce can begin if the relationship between husband and wife has broken down irretrievably for at least six months. This proceeding is not defensible. The terms of the separation, including but not limited to, equitable distribution, spousal support and child support would still need to be determined before a divorce is granted.
Other clients are unaware that each is entitled to a portion of the other’s retirement or pension if he/she wishes. A formula developed in a New York Supreme Court case in 1984 (Majauskas v Majauskas ) is used to determine the amount (maximum is fifty percent), but the actual amount depends on the number of years of the marriage in which the benefit was earned.
There is no need to rush to file for divorce once you have an acknowledged (notarized) Separation Agreement. Once acknowledged you have a legal document that has the same legal effect as a divorce decree except that you cannot remarry until you file the Separation Agreement and become divorced. You can also continue to receive or provide health insurance while legally separated but not when you are divorced.
What used to be called alimony is now referred to as maintenance. There is a formula for determining the amount and duration of payments. Maintenance is intended for a period of time to give one the opportunity to obtain economic stability and the amount of time is determined by the length of the marriage, incomes of the parties and age.
Perhaps the most important fact about mediation is that the process empowers the clients to deviate from the norm. In contested divorces, the “default” calculations regarding child support and maintenance are usually followed by the Court and can become a burden on the payee. We always provide and go over these “default” calculations for child support and maintenance for our clients. Judges want to know that each party is aware of these calculations during their mediation. However, mediation allows the parties to deviate and make agreements that will be best for their children and each other.
All of these issues, along with the important issues of child support, custody and parenting, can be resolved rationally and quickly through mediation.