The Right of First Refusal

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parent and child

When couples with children begin divorce mediation, we generally begin with a parenting plan. The parenting plan for divorced parents includes much more than where the children will live and how and where they will spend the holidays.
A much negotiated issue in divorce mediation is what’s called the right of first refusal. This refers to the option to care for the children when it is not your scheduled parenting time. For example, maybe it’s one of Dad’s night with the children, but Dad needs to attend a business dinner. He has the option of asking Mom if she is free to be with the kids, or arranging for a babysitter. If Mom has the right of first refusal, Dad must ask Mom if she is free before hiring a sitter. Mom is not obligated to care for the children, but she has the option.
Many divorcing parents favor the idea of a right of first refusal in their parenting plan because it maximizes a parent’s time with their children. Sometimes, however, if divorced parents are not amicable, the right of first refusal can cause conflict. There are several reasons why:

• Divorced parents want their privacy

A parent who will be unavailable at his or her scheduled parenting time may not want to disclose that to the other parent. It may feel like an invasion of privacy to inform the other parent of their whereabouts.

• Some children of divorce do better with consistency

Parents may feel that the children do better with strict compliance to the parenting schedule created in their mediated divorce agreement. It is upsetting for some children to shift gears when they expect to be at one parent’s home and have to relocate to the other parent’s home.

• Divorced parents may argue about whether the right of first refusal was honored

Often the divorce agreement will provide that the right of first refusal only comes into play if a parent is going to be unavailable for a certain minimum period of time – four hours, overnight, etc. Sometimes the unavailable parent only plans to be out for an hour, but gets stuck in traffic. The other parent might feel that right of first refusal was not respected and be angry about not having had the option to be with the children.

When created a parenting plan, give serious thought to whether to include a right of first refusal in your divorce agreement. The benefit of potentially having additional parenting time needs to be balanced with the conflicts that might be created. If you choose to include a right of first refusal in your parenting plan, try to make it as specific as possible to avoid future misunderstandings. The most important thing you can do for your children is to minimize conflict.

How Long will Divorce Mediation Take?

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Time

 

When couples are considering divorce mediation, they often ask me how long the process will take. It is a difficult question to answer when I have just met the divorcing couple. There are many variables that drive the divorce mediation process.

There is a 90-day waiting period to divorce in Connecticut

In the most straightforward cases, it is not uncommon for couples to complete the divorce mediation process before the expiration of the 90 day waiting period required by the State of Connecticut. Perhaps we meet for 3 or 4 sessions to gather information and make decisions. We will meet once again to review a draft separation agreement. We then meet shortly before the date of their divorce hearing to update the numbers on their financial affidavits and sign the documents.
A number of variables determine the time line for divorce mediation:

How complex are your finances?

Many divorcing couples have fairly simple financial pictures. Other people have more complex situations. For example, they may own a family business, have a home in foreclosure, or have an income that varies widely from year to year. In addition, there may be a need to consult outside experts to appraise real property, value a business or a pension, or get tax advice on structuring a settlement. Perhaps there are immigration or bankruptcy issues to consider. Each of these issues is likely to take some time to resolve.

Have you gathered your financial information?

The divorce process requires the collection of information about your assets, debts, income and expenses. If you have gotten organized and collected information before beginning divorce mediation, you will save time. For more information about the information you need to collect see: http://vickivolper.com/financial-information-to-collect-in-preparing-for-divorce/

Have issues been discussed before beginning the divorce mediation process?

Some couples have sat down together before even consulting with a divorce mediator and have come to tentative agreement on many issues. While we will revisit all of these decisions in divorce mediation, and perhaps revise them, couples who have discussed some issues are ahead of the game. Even if the couples’ decisions are revised, the process of talking about them and crystalizing issues can help the process move more quickly. Still, discussion of divorce issues outside of mediation is not always advisable. See: http://vickivolper.com/should-couples-negotiate-between-divorce-mediation-sessions/

How busy are you?

Sometimes well-intentioned couples delay the divorce mediation process for reasons beyond their control. Work and travel schedules may interfere with scheduling mediation sessions. When too much time elapses between sessions, the mediation process tends to lose momentum and slow down.

What is the level of emotion when divorce mediation begins?

Many couples begin divorce mediation after much consideration and discussion of divorce . Other times, one spouse is thrown into divorce unexpectedly. In the latter situation, it is understandable that it might take time for the second party to accept the idea of divorce before engaging effectively in the mediation process.

While there are variables that may make the process of divorce mediation take more time than you would hope, divorce mediation will be almost always be the quickest way to divorce. It is also the most efficient and cost effective divorce method.

Should Couples Negotiate between Divorce Mediation Sessions?

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couple arguing

Sometimes negotiation between spouses outside of divorce mediation sessions is a bad idea.

Everyone is anxious to move through the mediation process quickly. It is natural to want to get this interim period over with. It might also seem that negotiating outside of mediation will save some money. Yes and no, for several reasons: Mediation should be an orderly process. All of the requisite information should be gathered before decisions are made. When couples try to “put the cart before the horse” by deciding who will keep certain assets before valuing and considering all of the assets, an injustice might be done. Someone might be shortchanged. The decisions about asset division should also be considered together with support decisions, not in a vacuum.

Negotiations without a divorce mediator may be unfair.

Spouses often have different skill levels when it comes to financial issues. A savvier spouse might convince a less savvy spouse to accept a disadvantageous offer. Spouses also may have unequal bargaining power for emotional reasons. A mediator will be able to help level the playing field for more equitable negotiations. Legal information may be missing. There may be legal implications to the decisions you are making of which you may not be aware. Some decisions have significant tax consequences. Some decisions may be contrary to what typically happens in divorce in your jurisdiction. While you are free to disregard the information about how an issue would likely be decided in court, it is generally a good idea to have that information for consideration.

Hostilities might increase.

While some couples can discuss the issues raised in divorce mediation outside of session, other couples find themselves arguing and increasing the tensions at home. If you find that discussing your divorce at home makes home life unpleasant, save your conversations for the safe space of the mediation session.

Give it some thought.

If you can talk with your spouse about how things might be fairly decided, go ahead and have the conversation. If you do, try to consider these decisions tentative until you discuss them in your divorce mediation. Be open to reconsidering issues based upon new information the mediator may provide. If your conversations become heated, or feel threatening, save them for mediation. Be patient. The money saved by potentially shortening the divorce mediation process may not be worth it

Divorce Mediation and the Marital Residence

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house

For many couples, their home is their most significant asset. For that reason, negotiations over the disposition of the couple’s home often play a significant role in divorce mediation. Following are some of the key issues that a couple engaged in divorce mediation might need to consider:

After the Divorce – To Sell the Home or Keep It

The question of whether to keep the marital home after divorce hinges on a number of factors. On the emotional side, couples may not want to have to relocate their children. The adjustment to the divorce may be all that the children can handle. Adding a move might seem too much of a change in the children’s lives. Obviously, very young children would be less affected by this move than older children who have friends in the neighborhood and attachments to the physical surroundings.
Unfortunately, many couples do not have the luxury of keeping one parent in the home with the children even when they would like to do so. Many couples, after evaluating their finances, find that they need to access the equity in the home in order to afford two residences. That assumes, of course, that there is equity in the home. Many couples entering divorce mediation find themselves in the unfortunate situation of having debt on their home that exceeds its value. In that case, couples often decide to hold onto the house until that market picks up and increases the home’s value.

The Expense of the Home after Divorce until Sale

Divorce mediation sometimes results in the decision that one of the parties will stay in the house for a period of time after the divorce. Sometimes until the market turns around, other times until the children graduate from high school. Regardless of the reason, the couple must make a number of decisions about how to finance the home until it is sold. Usually the party who will live in the home will pay the day-to-day expenses of the home such as the mortgage, real estate taxes, insurance and utility bills. Alimony and child support often help to meet these expenses. Larger expenses, such as major repairs or capital improvements are often shared by the parties in some fashion since such expenditures help maintain the value of the home which is a jointly owned asset until it is sold.

After Divorce – Protecting your Asset

If the parties decide in divorce mediation that one party will remain in the home and pay the mortgage until a division of proceeds on a sale date down the road, the party not living in the home may be concerned about making sure the mortgage is paid to protect his or her investment. Sometimes the parties will agree that the party residing in the home will provide proof that the mortgage is paid—either monthly or only upon request. In addition, the non-resident party may have the option of paying the mortgage on behalf of the party living in the home, if he or she fails to do so. In that case the non-resident party may be reimbursed for such payments at the time of sale “off the top” before the division of sales proceeds. Alternatively, if the non-resident party has an obligation to pay alimony to the resident party, mortgage payments may be deductible from the alimony payments that come due.

Dividing the Proceeds of Sale in Divorce

While couples in divorce mediation most often decide to divide the proceeds from the sale of the house equally, that is not always the case. A number of factors might lead to an uneven division of the sale proceeds. For example, sometimes one of the parties provided a large sum as a down payment on the house. The parties may decide in divorce mediation that it is equitable for that party to be repaid before dividing the balance of the proceeds. Another consideration might be that the house was formerly owned by the family of one party. In other cases, one party may opt to take the full value of the house in exchange for the other party retaining other assets of equal value. In that case it is important that the party keeping the house does not become “house poor” because of a lack of liquid assets. It is important not to let an emotional attachment to the idea of keeping the house override good financial judgment.
In conclusion, there are many issues surrounding the marital home that need to be decided by a divorcing couple. Hopefully, through divorce mediation, the couple will make well thought out decisions that will serve them well in their futures.

 

Couples Who Divorce in Fairfield County Benefit from Divorce Mediation or Collaborative Divorce

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A typical high income Fairfield County resident who is considering divorce needs to consider the divorce laws of Connecticut and their impact upon the unique issues facing the wealthy. While a divorce in Fairfield County must follow Connecticut State Law, the manner in which you choose to divorce can greatly affect the outcome within the state’s legal parameters. It pays to be aware of the options available to you and to choose wisely. The method you choose can have a large impact on the cost of your divorce and the ultimate outcome.

The Impact of No Fault Divorce in Fairfield County

Connecticut is a “no fault” divorce state, but that does not mean that fault is never considered. It means that it is possible to file for a divorce based on the irretrievable breakdown of the marriage without alleging the fault of one spouse or the other. If however, you choose the traditional two-lawyer method of divorce in Connecticut, and if the case is litigated, the fault of the parties is one factor that a judge may consider in both the division of the couple’s assets and the awarding of alimony. This is a powerful reason for many couples to choose a non-adversarial divorce method such as collaborative divorce or divorce mediation in Fairfield County.

The conventional wisdom is that couples with large assets and high incomes should take the traditional, adversarial route to divorce. The thinking is that when there is so much to gain or lose, it is necessary to have a zealous advocate protecting your interests. On the contrary, where the stakes are high, couples have an increased incentive to choose a non-adversarial method which allows the couple’s own sense of fairness, and not a judge’s conception of fault, to be the primary factor in deciding financial issues. When the divorcing couple earns just enough to get by day to day, the judge has less flexibility because both parties need to be left with enough to survive. Where there is more than enough money to go around, as in most Fairfield County divorces, fault may more readily be used by a judge to punish the offending party and skew the results.

The Increased Need for Privacy in Divorce in Fairfield County

Even where fault does not directly influence the financial outcome of a divorce, both parties stand to lose if the monied spouse risks the public exposure of his or her bad behavior. The typical executive going through a divorce in Fairfield County may have a high profile position or business that cannot withstand the airing of dirty laundry. Both parties (and the children) lose if the primary income earner ‘s livelihood is compromised by the divorce process. In collaborative divorce and divorce mediation there are no court hearings other than the one perfunctory uncontested dissolution hearing at the end of negotiations. Personal misdeeds are not discussed in open court and do not become public record. The fear of such exposure need not come into play in negotiations.

Equitable Distribution in the Fairfield County Divorce

Asset division in Connecticut is based upon the principal of equitable distribution. Many people who divorce in Fairfield County have substantial assets. How they are divided is often quite contentious. In some states, there is a presumption that assets received by a spouse through inheritance or gift from family members are to be retained by that spouse in divorce. A party anticipating a divorce in Connecticut needs to be aware that all of the couple’s assets can be subject to distribution in the divorce proceedings, regardless of their source. For that reason, in a typical Fairfield County divorce, a party may benefit from the use of collaborative divorce or divorce mediation, where the parties’ own sense of the equity of distributing such assets is primary. As with the issue of fault, in collaborative divorce or divorce mediation, the couple can allow their own values to determine the outcome instead of relying on legal presumptions. For example, in an adversarial divorce, one party’s attorney might “go after” the other spouse’s inheritance, even if the parties have always treated such inheritance as the personal property of the inheriting spouse. In collaborative divorce or divorce mediation, the result is more likely to respect the couple’s intent.

In addition to the above, many couples choose divorce mediation in Fairfield County for the cost savings. Even a typical high earning Fairfield County resident, who can afford high priced lawyers, would like to minimize divorce costs. Only the most acrimonious couple would prefer to give their money to their lawyers rather than their children. It is easy to understand how divorce mediation is economical. First of all, fees are usually billed on an hourly basis and usually no retainer is required. Collaborative divorce, even though it involves the use of two lawyers (and other divorce professionals in the case of the team method of collaborative divorce) and usually requires a retainer, is significantly less costly than an adversarial divorce for several reasons.

First, in both collaborative divorce and divorce mediation, negotiations take place face to face with both spouses and either the mediator or the two attorneys present. This avoids the time and money-wasting “telephone tag” that often occurs in the adversarial divorce. It also avoids the costly misunderstandings inherent in hearing a spouse’s thoughts as interpreted first through his lawyer and then through yours. There can be no “spin” put on communications that are face to face. The negotiations in collaborative divorce and divorce mediation focus on efficient and effective problem solving rather than on fighting and blame.

Second, by using collaborative divorce or divorce mediation, a couple completely avoids the filing of motions and the related court appearances. If you have ever waited with your attorney in court for your motion to be heard, you have heard the clock ticking and seen your legal bills growing by the minute. To add insult to injury, you are losing valuable time when you could be earning money to pay for these mounting legal fees.

In conclusion, despite popular wisdom, the couple who is anticipating divorce in Fairfield County would be well served by considering a non-adversarial method such as collaborative divorce or divorce mediation.

Attorney Vicki Volper, a Westport family lawyer, has extensive experience working with high net worth couples in both divorce mediation and collaborative divorce.

Qualities Needed for Success in Divorce Mediation

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Jump gap

Are you a good candidate for Divorce Mediation?

When I receive a phone call about divorce mediation, I am often asked whether the caller is a good candidate for mediation. The conversation often leads to a description of the conflict the couple is experiencing that is the immediate reason for their divorce. How, I am asked, can we mediate when we are not able to have a civil conversation?
It is a misconception that divorcing couples need to be able to communicate well to use divorce mediation successfully. The majority of couples who divorce have strained communication when they begin mediation. That does not rule out a successful divorce mediation process. It is my job as the divorce mediator to help the couple reach consensus despite their communication issues.

Who can be successful in Divorce Mediation?

More important than the ability for the divorcing couple to communicate with each other are certain other qualities each of them should have:

  • The ability to be aware of and articulate their needs and goals for the divorce process.
  • A degree of empathy for their spouse’s situation.
  • The patience to actively listen while their spouse speaks.
  • The willingness to ask questions and not jump to conclusions about how the divorce process will end.
  • The understanding and acceptance that the divorce mediator will facilitate conversations between the divorcing couple, but not make  decisions for them.

The vast majority of couples who begin divorce mediation are successful if they are committed to the process. The rewards of a non-adversarial divorce are substantial and worth the effort.

Prenuptial Agreements

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What is the Role of a Divorce Lawyer in the Divorce Mediation Process?

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law books

When working with a couple in divorce mediation, I strongly encourage, and sometimes insist, that each party hire a divorce attorney to act as review counsel. Often one or both parties will question the need for review counsel. Why, I am asked, if you are a divorce lawyer, do I need to hire another divorce lawyer as review counsel?

Your Divorce Mediator Will Not Give You Legal Advice

Your divorce mediator will help you and your spouse have fruitful conversations about how to resolve the issues of your divorce. These include both financial issues, such as asset division and support, as well as family issues, such as the weekly and holiday parenting schedules. You will have the opportunity to craft solutions that best meet the needs of each member of your family.
During the negotiations, your divorce mediator will give you general information about the divorce laws and how the law might affect your situation. Your mediator will not, however, give you legal advice. That is because a mediator must remain impartial. Your mediator will provide only general legal information, and will not discuss the law as seen from your individual perspective.

Hiring a Divorce Lawyer as Review Counsel Makes Sense

Hiring a divorce lawyer as review counsel will provide you with information your mediator cannot provide for you. He or she will review your divorce agreement and explain the significance of each provision in a way you can understand. Often a conversation with your review counsel can help flesh out the implications of a decision you have made. In addition, your review counsel can tell you whether the agreements you have reached are typical or unusual. You might also learn whether you are likely to have reached the same decisions if you had not used divorce mediation. Your divorce agreement will probably have implications for your life for years to come. The opinion of review counsel is a wise investment.

Select the Right Divorce Lawyer as your Review Counsel

It is important to choose the right divorce lawyer as review counsel. Your divorce mediator should be able to provide you with a list of divorce lawyers to choose from. If you opt to use a divorce lawyer not on the mediator’s list, consider whether such person has the qualities of a good review counsel.

• Is the divorce lawyer “mediation-friendly”?

The best review counsel are often mediators themselves. If they are not, they should at a minimum, be knowledgeable about and respectful of the mediation process. A divorce lawyer acting as review counsel should understand that you are committed to the mediation process. You should be able to trust that your review counsel has your best interests at heart and is not looking to push you into an adversarial mode to drum up legal fees. He or she should offer you information without trying to change your mind about the decisions you have reached in mediation. That being said, if a mediation-friendly review counsel advises that your agreement is very far from the norm, pay attention.

• Is your review counsel knowledgeable about the divorce laws of your state?

It is important to have review counsel whose practice is dedicated to the field of family law in your state. Family law decisions are based upon the facts of each specific case. Only a lawyer who is familiar with the local divorce statutes and case law can advise you properly about the wisdom of the decisions you have reached.

• Does your divorce lawyer have a good reputation in the community?

It goes without saying that a personal referral from someone you trust is valuable. Be sure to ask around about a divorce attorney before hiring one. You should look for someone who has a reputation for integrity as well as knowledge and experience. You should also ask whether a divorce attorney is pleasant to work with. Is the attorney available or hard to reach? Do they return phone calls within a reasonable time? Do they ask for a retainer or bill as you go? How many hours do they expect to spend reviewing your mediation agreement?

Sometimes you may want to consult a divorce lawyer during the process of divorce mediation

In divorce mediation you will be encouraged to consider your own values in making decisions before considering the law. What do you think is fair under all of the circumstances? Your mediator will help you examine and articulate your values and your goals for mediation. Each decision you reach will hopefully foster your goals and be in line with your expressed values. Sometimes, however, you may be unclear about whether your agreement makes sense for you and your family. Perhaps you are not familiar with financial issues and are concerned about making the wrong decisions. This can create anxiety and make you feel insecure about the mediation process. It is reasonable, in such cases, to hire an attorney to “coach” you through the divorce process.
In choosing your coaching counsel, apply the same factors you would use in choosing review counsel. Inform any attorney you consult that you are in mediation and plan to stay in mediation. Incorporate your lawyer’s advice as needed, but try not to get stuck in any position that your lawyer recommends. The beauty of the divorce mediation process is the ability to avoid “one size fits all” solutions.

Who is a good candidate for Divorce Mediation?

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When I receive a phone call about divorce mediation, I am often asked whether the caller is a good candidate for mediation. The conversation often leads to a description of the conflict the couple is experiencing that is the reason for their divorce. How, I am asked, can we mediate when we are not able to have a civil conversation?
It is a misconception that divorcing couples need to be able to communicate well to use divorce mediation successfully. The majority of couples who divorce have strained communication when they begin mediation. That does not rule out a successful divorce mediation process.
More important than the ability for the divorcing couple to communicate with each other are certain other qualities each of them should have:
• The ability to be aware of and articulate their needs and goals for the divorce process.
• A degree of empathy for their spouse’s situation.
• The patience to truly and actively listen while their spouse speaks.
• The willingness to ask questions and not jump to conclusions about how the divorce process will end.
• The understanding of, and acceptance that, the divorce mediator will facilitate conversations between the divorcing couple, but not make decisions for them.
The vast majority of couples who begin divorce mediation are successful. The rewards of a non-adversarial divorce are substantial and worth the effort.

 

Mediation and Collaborative Divorce to Manage Conflict in Divorce

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divorce mediation

Many people will turn to a divorce lawyer before talking to their spouse about divorce because they are concerned about preserving their rights. Often the other spouse learns about the divorce by receiving legal papers from the divorce lawyer beginning the divorce action. The other spouse, having been blindsided, engages his own divorce lawyer to respond to the action. Communication between the parties is over. From here on in, the divorce lawyers do the talking. Each party talks to his or her lawyer, who then communicates with the other lawyer. Like in a game of “Telephone” each communication is likely to be slightly distorted or misrepresented. The fear, anger and blame escalate, and the parties are further alienated from each other. It is important to note that the level of conflict between parents is the single most important factor in how children will fare in divorce. Let me be clear: More important than whether children remain in their home, the asset division, the support arrangement or even the parenting schedule, the most important thing you can do to help your children come through the divorce process whole is to keep the level of animosity between the parents to a minimum.
There is another way to divorce. You and your spouse can maintain control of the divorce process and untangle your lives in a thoughtful, respectful manner.

Divorce Mediation and Collaborative Divorce Reduce the Level of Animosity

No divorce will be free of conflict. The goal is not to avoid conflict altogether; that is an unreachable goal for all but the most unusual couple. The aim is to manage the conflict and work through it thoughtfully and respectfully. There are ways to deal with the conflict of divorce productively.

Divorce Mediation

In divorce mediation, you and your spouse will meet with the neutral divorce mediator to talk about what the divorce will look like. Each spouse will have an opportunity to examine his or her goals for the process. These include financial and emotional goals for themselves and the children. The divorce mediator will facilitate these conversations and help each spouse articulate his or her needs. Read more about divorce mediation. http://vickivolper.com/divorce-mediation/

Collaborative Divorce

Some people would like to divorce amicably, but are, for one reason or another, uncomfortable sitting in the room with their spouse and the mediator without a divorce lawyer. Perhaps they find their spouse intimidating or are not at all familiar with financial matters and are unable to discuss them knowledgeably. For such people, collaborative divorce is a good option. In collaborative divorce, the couple sits at the table together, but each spouse has a divorce attorney in the room. Collaborative divorce is a respectful and thoughtful approach to dealing with the conflict of divorce. It has many of the same benefits of mediation, and also offers the comfort of having a divorce attorney at your side through the process. Read more about collaborative divorce. http://vickivolper.com/collaborative-divorce/

Vicki Volper, a mediator and collaborative divorce lawyer practices in Westport, Connecticut.

Call for a consultation (203) 222-1202