Divorce not only terminates a marital union, it also abolishes an economic partnership between the two parties. In unraveling the marriage, the court requires you to settle the following issues:
- Equitable distribution of property and division of debt
- Child custody
- Child support
- Spousal maintenance
- Other pertinent issues, e.g,. health insurance
Ending a marriage can be an emotional and overwhelming experience. Most people who have been through divorce litigation will tell you that the experience was emotionally stressful, adversarial, dictated by the schedules and procedures of the legal system, prolonged, and prohibitively expensive.
Divorce mediation, on the other hand, gives you a structured process to get a divorce that avoids the unnecessary expense and emotional turmoil of divorce litigation.
Working with the mediators at Hudson Valley Divorce Mediation, you are provided with a safe and private environment to work, and issue-specific guidance as you and your spouse sort things out.
To get started, the mediators would want to know more about you, your circumstances, and your goals for mediation. Is there already some degree of common understanding between you and your spouse? What worries you the most as you move forward with the divorce?
If you have children, you will make plans for their care and support, as described in Child Custody Mediation.
Money issues worry most couples. To begin to unravel your financial affairs, the mediators guide you in collecting information on what you own and what you owe, so that a complete picture of your financial situation can be constructed.
What needs to be done?
In order to obtain a judgment of divorce in court, you and your spouse will need to present a net worth statement and an equitable division of your marital assets and liabilities. If you have children, you will also need to have a detailed plan of your shared parental responsibilities, including child support obligations. If spousal support (alimony) is agreed upon, this will be fully described as well.
On the personal side, you may feel the financial impact of the divorce. The family income that had previously provided for one family unit now has to support two separate households. You and your spouse may both need a new spending plan and a realistic budget to see what you can afford and what lifestyle adjustments have become necessary.
How a New York divorce treats marital property
In New York, marital property is divided based on the idea of “equitable distribution.” An equitable division does not necessarily mean an equal share split down the middle, but rather an allocation that is considered fair and just, in the context of the couple’s overall circumstances.
Mediating the division of marital assets and debts
Full disclosure of financial information is expected of each spouse.
To calculate your net worth (your assets minus your debts), everything that you own and owe is listed. A dollar value is given to each asset. Some assets are simple to assign a value, such as cash in a bank account or in a 401(k). Financial account statements are readily available for verification.
Other assets will require an expert’s opinion in order to set a value, such as your house or your business. A real estate appraiser can be engaged to see how much your marital residence is worth, and a financial professional may be hired to value, say, your landscaping company.
After your financial picture is complete, you and your spouse start the important conversation on what you each need now and in the future. What assets you value and what can be offered for trade-off. You decide what is fair and how best to balance inequity. The mediators assist you in your conversation, and help you negotiate a fair division of your marital property and debts, and appropriate child and spousal support amounts if required in your situation.
A summary of the steps to take:
- Decide on a realistic and workable parenting plan
- Gather and organize financial information
- Determine values of certain assets such as the house and business interest
- Project budgets for both households and make plans to meet expenses
- Create a net worth statement
- Negotiate division of marital property and debts, and support amounts
- Find the best option for health insurance coverage
- Plan for the future, e.g., delayed sale of marital residence, college expenses
Information you and your spouse will review:
- Tax returns
- Both spouses’ paycheck stubs to show current income and withholdings
- Employee benefit statements of both spouses
- Copies of life and health insurance policies
- Retirement account statements of both spouses
- Current statements for all bank and brokerage accounts
- Mutual fund statements
- Statements on all outstanding loans, including your mortgage and credit cards
- Appraised value of real estate
- Appraised value of any business interests
- Appraised value of collectibles, antiques, jewelry, etc.
Making informed decisions
During mediation, you and your spouse are encouraged to consult appropriate experts and use relevant professional services when necessary so that you can make good, informed decisions. For example, you may need real estate appraisal services, tax professionals, experts who valuate pensions and business interests, child psychologists, and a consulting attorney whom you could ask questions with legal implications.
Expert opinion, however, need not always be determinative. It is for you to enter the mediation session armed with solid information, so that you can weigh your options and choose the best course of action.
The negotiated agreement is not considered complete until both you and your spouse find it acceptable and satisfactory.
The memorandum of understanding
The outcome of divorce mediation is the creation of a memorandum of understanding, or MOU, which records the agreements arrived at during mediation, and which will serve as a basis for your legal divorce settlement. The mediators at Hudson Valley Divorce Mediation recommend that you and your spouse each have a consulting attorney review the MOU to ensure that you have not agreed to anything that is against your own interest.
If both sides, after legal consultation, take no issue with the terms of the MOU, a neutral attorney in our group is available to draft and file your legal documents so that the court can grant you a divorce. Alternatively, you can have your own attorney prepare the legal papers.
Also see Frequently Asked Questions for more information.
This information is provided by Hudson Valley Divorce Mediation as a free educational resource, and does not constitute legal advice. You should obtain legal advice from a qualified attorney who is familiar with the facts and circumstances of your situation.