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Mediation or Collaborative Lawyers? (Part 2)

Increasingly in my practice couples come to me for mediation when one of the two - usually the wife - has a decided preference for Collaborative Practice. The "preference" derives from an intuitive sense that she would be much more comfortable with the protection and support of a Collaborative Lawyer who will advocate without being adversarial. Negotiating for oneself in mediation is not for everybody, and not even for all well-educated, competent and articulate adults.

"Dr. O'Brien I (no longer) presume."

The vitality of O'Brien v. O'Brien continues to be sapped in the First and Second Departments after having already suffered grieviously in the upstate Departments. In Kriftcher v Kriftcher, --- N.Y.S.2d ----, 2009 WL 262707 (N.Y.A.D. 2d Dept), the Second Department reduced a 40% award to the non-(law)degree-holding spouse to 10% because they saw little evidence of contribution from her. The Court stated that the non-degree-holding spouse had the burden of demonstrating a substantial contribution.

Practitioner Post: Capping Child Support

The First Department recently reminded, yet again, that in determining where to cap parental income for child support purposes one should calibrate it to the actual needs of the child. Are we focusing too much on where the judges are putatively capping it for a particular county, rather than on the children's expenses? Should we be doing what the lower courts actually do or what they are supposed to do? And if we go by expenses, does that mean that we build in an increase when that five-year-old turns fifteen?

When and What to Tell the Children

The consensus among child psychologists is that the best time to tell the children that you are getting divorced is about a week before one of you leaves the marital residence. That way, you can be as specific and concrete as possible about what the future will look like: "Daddy will be living just a few blocks away. You can come see his apartment, etc." And it limits the time that they can get anxious about the very move itself, or caught up in the ambiguous situation of being told that a divorce is looming and yet there you remain, living together.

Did you know . . .?

When a 401(k) retirement plan is distributed pursuant to a Qualified Domestic Relations Order, the spouse receiving a portion of it from the plan holder may be able to make a one-time withdrawal without penalty as a divorce exception to the usual rule that you cannot do so without penalty before you are 59 1/2. I.R.C.Section 72(t)(2)(C).

Four Divorce Mediation Myths

  1. That you and your spouse have to be "amicable" to succeed in mediation. Not so, unless you are so angry that you cannot sit in the same room, much less listen to what the other person has to say. A competent mediator can handle a high level of discord.

Mediator or Collaborative Lawyers? (Part 1)

It's a classic mediation vignette. The wife wants to have her husband's business appraised and brings it up in mediation. The husband has a reaction. Not necessarily an angry one, mind you. Perhaps a plaintive,"Don't you trust me to tell you what it is worth?" Or a softly-spoken threat: "If you go down that route, then we might as well litigate". As the mediator, I note that she of course has the right to an appraisal. And I acknowledge his concerns.
Marc Fleisher, Esq.
Berkman Bottger Newman & Rodd, LLP
521 Fifth Avenue, 31st Floor
New York, NY 10175
mfleisher@berkbot.com
(212) 867-9123



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