divorce mediation advice sought
June 17, 2013 9:35 AM   Subscribe

I have a one day mediation set for next week. I have a great attorney and the chosen mediator seems a great choice. What do you wish you'd known, asked for, given in on? All suggestions are welcome. It's been fairly amicable thus far, but the money is causing strife. I'm in Washington, so 50/50 is typical. I was a stay at home mom for 18 years. Separated two years, went back to work as a temp. Kids are over 18, college is paid for already.
posted by jennstra to Human Relations (22 answers total) 7 users marked this as a favorite
 
I've not been in this situation but the retirement fund should be discussed.
posted by Ruthless Bunny at 9:37 AM on June 17, 2013 [4 favorites]


Who keeps the house (quit claim), vehicles, who is the decision maker on the college funds if applicable.
posted by dotgirl at 9:43 AM on June 17, 2013 [2 favorites]


Besides splitting the assets in some reasonable to both parties way, one thing that might come up is alimony versus a lump sum go away payment.
posted by JohnnyGunn at 9:48 AM on June 17, 2013 [2 favorites]


Health insurance, since you're only a temp? Funds for more education for you so you can make enough money to support yourself decently? Some share of his pension? Some provision that a specific portion of his assets will go to his/your children when he dies, even if he remarries and has more children?
posted by mareli at 9:50 AM on June 17, 2013 [2 favorites]


Remember that YOU sacrificed the end years of your career where your earnings would be at their maximum (You'll never get these back - Boo!) and not the years at the start of your career where youd earnings are low (you still get to have those - Yay!). He did not make the same sacrifice. Fight like hell for what you DESERVE because of what you actually sacrificed/invested.
posted by srboisvert at 9:51 AM on June 17, 2013 [14 favorites]


I'm going to guess that your attorney has the important things covered to make sure you don't lose what you are entitled to, including retirement accounts, real property, health insurance, your career sacrifices, etc.

Beyond that, the most important thing to consider is whether being a jerk and getting the most money possible is worth the extra tension at future family events with your children (weddings, child birth, etc.)? Maybe, maybe not, but you should decide this for yourself before you go into it.
posted by unreasonable at 10:03 AM on June 17, 2013


My perspective is one of an attorney (not family law) who has participated in mediation, not as a divorcing person trying to settle a case.

Some things that can lead to a successful outcome in mediation:

(1) Knowing, really, truly, actually knowing what your goals are going in--this question is part of this process, but I would urge you to keep preparing until you know what you want. This will help you when you're sitting there trying to evaluate proposals, and it will help you craft sensible counter-proposals that will move the process forward;

(2) Before you go in, think of your strategy for making offers, and come up with some rationale or reason for each successive offer that you think you're going to make. Like, if you want to make an offer for (I'm making this up) 65% of your combined savings accounts, plus maintenance payments for two years, plus next year's tax return, have actual reasons for it that back up your numbers. Eventually the process will likely devolve into something that looks more like "we are willing to get this done for $x" without any justification behind it; but in the beginning stages, this will keep the process moving without you having to make huge concessions since you'll already have thought through a number of different possible positions to take and have some reasoning behind each one.

(3) To the extent you are able, be as coldblooded and objective as you can about this. Remove all emotion from the situation and treat it like some kind of math or logic problem, not as something emotional. I realize that is easier said than done, but the sooner and more effectively you are able to do that, the easier it will be to negotiate. Be Spock-like.

(4) On the flip side of that, be prepared that maybe your ex will not be able to do that as well and may need some time during the mediation to emotionally process some things and sort of come to grips with the fact that he just has to let go of some emotional baggage in order to reach a deal. So be patient, even though it is hard to be patient.

(5) Following on from both of those points, listen with an open mind to the perspective of the mediator and the advice from your attorney. The mediator should have the experience to know what proposals are crazy and what proposals are within the bounds of reason. If they are pushing back on you really hard and telling you that you just will not have success with a particular argument, consider this.

(6) See if you can get your ex to pay your costs of the mediation. A lot of time you can get agreement on this at the end of a long mediation when the other side is pretty worn down.

(7) Finally, realize that what you are doing, by definition, is unlikely to result in you getting every single thing you want: you are compromising. If you want to get every single thing you think you are entitled to, you need to be prepared to go to court to do it, and this is usually a very unhappy, tedious, unsatisfying process--and one that carries risk, too. So you need to make peace with the idea that you may need to make concessions on some things that you think are important. This is not "giving in" to your ex so much as it is deciding how much of your time, energy, and money you want to expend in the next several years to maximize your results. This circles back to point (1), which is do your best to know going in what is acceptable to you and what isn't. There's no point making a compromise if your chances in litigation are very good and the gulf between you and your ex is huge.
posted by MoonOrb at 10:10 AM on June 17, 2013 [14 favorites]


Don't talk too much. Let the mediator ask questions and guide the process. It's the mediator's job to be concerned about being fair to both of you while sticking to the law. Don't be quick to give things up. Read up on the guidelines for marital property in your state:
washingtons-community-property-laws-explained
apps.leg.wa.gov
en.wikipedia.org/wiki/Community_property
www.law.washington.edu/clinics/streetlaw/lessons/dismarriagecommprop.ppt

Have a list of assets including things that you value for sentimental reasons. Take pictures if possible; might be helpful to the mediator or as an aid to memory. Scanning to cd makes sharing the family pictures easy, no need to fight over them.

I've known several women who left behind more than the law allowed. You have retirement to consider, as well as lost income because of your years outside the workforce. I'm definitely not advising aggression, just that you don't work against your own best interests, which may be influenced by years of taking care of your husband. We had a mediated divorce, and when I was about to open my mouth and work against my own best interests, I took a break, went to the ladies room and splashed water on my face. The mediator worked it out fairly. Instead of suggesting resolutions, because I tend to want to solve problems, I kept my mouth shut and let the mediator do his job. My favorite example of why a mediator is a good way to go: my ex- had left lots of stuff at the house, and the mediator cut through all the discussion and just said What are you doing Saturday? Great, you can pick up your stuff Saturday. Anything not picked up by 6 p.m. is considered abandoned. Good luck with the mediation, as well as in your new life.
posted by theora55 at 10:17 AM on June 17, 2013 [1 favorite]


Just wanted to draw "pension" out of mareli's excellent points, and to remind you that a good agreement should include "What if he (or you) doesn't comply with this portion?" He's probably going to be in a better position to say, "Take me to court" and watch you burn money on a lawyer.
posted by Etrigan at 10:42 AM on June 17, 2013 [1 favorite]


Oh, another thing. Have your attorney prepare a form settlement agreement that leaves blanks for important terms. Bring the form agreement with you (by you, I mean you and your attorney--your attorney should do this) on a thumb drive. Your attorney should also bring a laptop or iPad. Then, when the deal gets done, use your form, which has all of the other terms you already want in it, fill in the parts that were just negotiated for, and then it can be signed that day or evening. Don't shake on it, say "Okay we have a deal," and then walk away with an agreement for the attorneys to draw up the settlement agreement later. Draw it up that night and get everyone's signature on it.
posted by MoonOrb at 11:00 AM on June 17, 2013


If you want to get every single thing you think you are entitled to, you need to be prepared to go to court to do it, and this is usually a very unhappy, tedious, unsatisfying process--and one that carries risk, too.

I agree with everything MoonOrb said, with the minor caveat that the word "risk" understates the case. Almost nobody walks out of family court with every single thing they believed themselves entitled to. Last month I attended a conciliation training for a family-court system that is launching a new conciliation program next month. It will be entirely a public service: The lawyers serving as conciliators will be unpaid volunteers, and parties' participation will be optional (to begin). We're doing it partly because the family courts are overloaded, but in large part because in neighboring jurisdictions already using conciliation, parties are overwhelmingly happier with their results.

The major difference between mediation and conciliation, for us, is that a mediator's job is to resolve the case if possible; and a conciliator's job is to resolve the case, period. But in both, the major difference from going to court is that the parties (you) control your fate. It's a business transaction: Neither party may be 100 percent happy with his/her result, but ultimately you negotiated it and you agreed to it. And what we tell people is, "This will not be true in court. If you go to court, you're putting your fate in a judge's hands. You will almost certainly be less happy with his decisions than if you negotiate your own."

So generally speaking, at least in my jurisdictions, it's wise to walk into mediation/conciliation with the expectation that you will resolve all disputes in that process. It's helpful psychologically to remove the going-to-court option from your back pocket, and put all your chips into this resolution process. It's easier, it's immensely cheaper, and people wind up happier.

I am not licensed in Washington; and obviously I'm not your attorney, as you already have one. This isn't legal advice for your situation, just information about experiences in my jurisdictions, and you should disregard anything that conflicts with what your lawyer tells you. Good luck.
posted by cribcage at 11:30 AM on June 17, 2013 [3 favorites]


t's the mediator's job to be concerned about being fair to both of you

I disagree. In my experience, a mediator's job is to GET AN AGREEMENT, and in the end, they have limited care for whether it's fair for both sides. I don't say this as a criticism. There's value in getting something done. But I think it's important to be clear that that is very much the mediator's goal going on.

What that means is that much depends on how flexible or inflexible one or both of the parties appear to be. If, hypothetically, your ex decides to draw hard lines in the sand and not give an inch, and you demonstrate a willingness to compromise for the purposes of getting a deal done, the mediator will push you to give ground, because it's the only way to get an agreement.

I've been in mediation with intractable people, and the mediator mostly agreed with me, but that meant nothing when it came to trying to get a resolution.

I'm not saying mediation is a bad process for resolving this type of conflict, or that you have any reason to be concerned if things are generally amicable (money is always tricky). It is definitely better (and WAYYYYYY cheaper) than going to court.

I'm just saying mediation can be gamed, and simply to be aware of that.

I endorse what MoonOrb said. Discuss with your attorney in advance what's negotiable and what's not. Know it going in.
posted by dry white toast at 12:15 PM on June 17, 2013 [5 favorites]


I left behind a lot, in the misguided interest of being "equitable" and "fair." I think I was just reverting to trying to be "amicable," all terms that, 15 years later, are meaningless.

As time wore on, it was obvious that, like you going back to temping, I was starting from scratch and he was closing gaps. The mediator is not interested in the nuances or how it's going to roll out five years down the line, when the adult kids need health insurance, or help securing a first apartment, or help with a wedding or a down payment or even a car repair. There's no way I can go 50/50 on these things. And yet I do. It's painful.
posted by thinkpiece at 12:45 PM on June 17, 2013 [3 favorites]


Beyond that, the most important thing to consider is whether being a jerk and getting the most money possible is worth the extra tension at future family events with your children

I've got a gendered horse in this race, so I'll just politely say, getting the most money possible is not being a jerk and is not synonymous with "extra tension" with the kids. It's looking out for them, whether they realize it or not (and someday, they will).
posted by thinkpiece at 1:17 PM on June 17, 2013 [4 favorites]


I'll just politely say, getting the most money possible is not being a jerk and is not synonymous with "extra tension" with the kids. It's looking out for them, whether they realize it or not (and someday, they will).

Can't the other parent make the same argument?
posted by esprit de l'escalier at 2:18 PM on June 17, 2013 [1 favorite]


Thing I have not seen mentioned on this list: who pays any outstanding credit card debt or car loan. These items are often small compared to the house debt, but don't overlook them.
posted by immlass at 4:49 PM on June 17, 2013


*Make sure your own health insurance is covered, as well as for any of your kids still in college.
*Who gets which car --- one for you and one for him sounds fair, IF those cars are of basically-equal value.
*Decide who gets the house: does one of you sign over their share to the other, or do you sell and split the profits?
*If, like a lot of women, you dropped out of college to support him, either as a stay-at-home-mom or working outside the home to bring in income while he furthered his professional qualifications, then he should pay for you to finish college yourself.
*Family heirlooms --- who gets what, especially if it means a lot sentimentally to one of you.
posted by easily confused at 5:32 PM on June 17, 2013


Think about the tax consequences of certain monetary arrangements. As I'm sure your attorney told you, spousal support is deductible for the person giving the money and taxable as income to the person who receives it. A lots of time the higher earning spouse tries to use this to their advantage (you're at a lower tax rate so surely it makes sense for you to suck up the extra cost for the support); but it pays, literally, to think creatively about financial arrangements. If your ex agrees, in theory, to a certain amount of support, it may be better to get that amount via a different avenue than spousal support like a larger share of equity in the house or through a larger share of retirement accounts (or percentages thereof and a smaller amount in pure spousal support).

Think of whether "tiers," or conditions, might help you get beyond an impasse in negotiations (more money for first five years and decreasing amounts until X condition occurs). As Moon Orb said, decide ahead of time what, if all else fails, you really truly want. Think generally -- "enough to stay in this house until the last child graduates from college" or "financial security until I can find full-time work" and then keep that in the back of your mind as the mediation runs it course; think about what you'll give up to get what is truly, the MOST important thing to you. For example, are you willing to give up a larger share of the assets now in order to have a greater sense of financial security until you get full-time work? Do you want a larger amount of money now in order to keep the house until the kids get out of college while sacrificing your own personal financial security in the future? You get the idea. You can be pretty creative when structuring property divisions. Good luck.
posted by notcomputersavvy06 at 6:38 PM on June 17, 2013


Can't the other parent make the same argument?

Many variables impact the answer. What is the custody arrangement? How were the financial obligations treated BEFORE the divorce? Who gave up what (relocated for spouse, left school, left career path, stayed home with kids, used family money to purchase primary residence, did not cheat or abandon, etc etc) in support of the other's ambitions/career/entrepreneurialism, with the expectation that at some point "down the road," the sacrifice would be reciprocal.

Mediation pays the closest attention to current state. Not all marriages work that way. You compromise and offer up your dreams, time, body, energy, ideals, money, etc etc with faith in the future. Of course, there's no lock on that, but if you are not both giving the same effort, commitment, dedication to the mutually decided-upon dream, should you be a 50/50 partner in the debt and the assets when one partner doesn't keep the pact?
posted by thinkpiece at 7:17 PM on June 17, 2013 [2 favorites]


Don't want to get into a back-and-forth, so OP: My advice is that in this process, you should aim to be fair.

Many variables impact the answer.

Many good points are listed in thinkpiece's recent answer. Try to consider everything and figure out why you think what you think is fair and then aim for negotiations to end up at that point.
posted by esprit de l'escalier at 7:46 PM on June 17, 2013


Thank you for all of your answers. I appreciate the time you all took. I left the home, there is no debt ,-other than mortgage, I want to be fair, but it doesn't feel fair. I am getting happiness, but I can't pay bills with that. i have two interviews tomorrow, low pay, but good benefits. I had cancer 10 years ago, i am either uninsurable or i can't afford insurance.
my personal satisfaction and happiness are immeasurable.
posted by jennstra at 9:39 PM on June 17, 2013


Never lose sight of the fact that this situation is two sides at odds, in conflict. "Mediation" sometimes lulls people into a false sense that everyone in the game is aiming to be fair and equitable. They are not. Your spouse wants what he wants, his lawyer certainly wants what he wants, the mediator wants to hammer out a deal that everyone is willing to sign off on at that moment without regard to consequences or eventualities. Do not relax. Do not let yourself get comfortable. Stay alert as a hawk and prepared to fight, fight, fight like hell.
posted by charris5005 at 5:16 AM on June 18, 2013 [1 favorite]


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