IS MEDIATION RIGHT FOR YOU?

Posted by Robyn D. Weisman, Esq. on September 28, 2016

jpg”>Mediation In The First Place

Divorce Mediation is a kinder, gentler way to enter into a divorce or separation. It is much less expensive, much more amicable and much quicker than a tradition courtroom battle which is becoming less the norm.
But is it right for you?

When it comes to families with children, family law over the years has changed significantly. Both parents are more inclined to be an active role in their children’s lives. In mediation we encourage parents to develop “parenting plans” that meet the needs of the children and the parents, allowing both parents to spend a substantial amount of time with their kids. Co-parenting plans focus on the children and their needs and take away the “custody” battle. Although divorce is an end to the marital relationship, the parental and family relationship continues. Mediation is designed to promote communication and therefore can help families establish their new- post-divorce relationship and life.

Because mediation is a less contentious process than a courtroom divorce, couples without young children find their way into mediation as the process focuses on negotiation. The division of the property and assets with the help of a neutral third-party helps to develop an amicable resolution and one that meets the concerns of the parties. A mediator is required to be a neutral party and works with the couple for the good of both parties.

Mediators address the following: equitable distribution of assets and debts, spousal maintenance (alimony), health insurance, and parenting plans.
Divorce mediation is a process wherein both parties are equally acknowledged and heard. It is a process in which a mediator makes a difficult time a little easier. Both parties work to gain their independence while at the same time working together to come to a mutually beneficial and respectful agreement. With the trained mediator’s assistance neither party will dominate the other party but instead will work together in a healthy fashion to secure their future.

Is mediation right for you? Unless there are issues of protective orders or spousal abuse mediation is the better alternative.

Disclaimer: The information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Author: September 28, 2016

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Divorce Mediation & Advice

WHY MEDIATE A DIVORCE OR SEPARATION: ADDRESSING THE MYTHS OF MEDIATION

By Robyn D. Weisman, Esq. January 7, 2016

I have been handling divorce cases either through litigation or mediation for over 30 years and I have been privy to so many incorrect rumors or “myths” about mediation. As an attorney who has had quite a bit of Courtroom battles in the divorce arena and has chosen to forego those horrible battles and built a thriving mediation practice, I must now crush those myths and describe why the mediation process is a much more desirable approach to a couple than maybe you have heard.

First, I am sure by now if any couple has researched the various avenues to obtain a separation or divorce, the process of collaboration or mediation has entered the picture. What is the difference? In a collaborative divorce, like mediation, the process is done outside of the courtroom until the papers are filed. Unlike mediation, both spouses hire attorneys to represent them and they enter into an agreement to stay out of court. During a series of “mediation” type sessions where all parties are present, as well as in certain circumstances, accountants, financial managers, therapists, and mediators, the parties negotiate through the various issues presenting the couple. This type of scenario is much more costly than mediation and sometimes can even be almost as much as a Courtroom battle. When collaboration is done correctly, as I have seen in States outside of New York and also in upstate New York, it can be helpful to a couple and provide a little more hand holding to each spouse.

What is different about mediation? The mediator works with the couple without attorneys present, avoiding the cost of retaining attorneys. It also gives the couple a chance to “vent” or voice their own concerns as they go through this difficult process without having an attorney to speak for them and who often will argue for things the parties actually do not even care about. Of course in mediation, either party may speak with attorneys, accountants, therapists, whoever will aid them in their decisions. In my mediations, I always recommend individual attorney review once the agreement is drafted, as someone to just even bounce the agreement off of and for a second set of eyes.
A mediator has no power over the decisions. Working with a mediator gives you control over your agreement and the issues such as parenting, what to do with the house, retirement benefits etc. It is the mediator’s job to work through the issues that the couple does not agree on.

The benefits of mediation are significant. The lower cost and time, as well as the ongoing communication between the parties, especially for those who are parents make mediation such a preferred alternative.

Another “myth” I often encounter is: if I hire my own attorney I am more likely to end up with a better agreement. No one wins in a divorce. The only people that get enriched in a litigated divorce battle are the attorneys. The amount of money spent on litigation will deplete the savings or college funds a couple has worked so hard for. Furthermore, very often the attorneys will advise their client not to communicate with the other spouse. This is horrible advice when the clients are parents. Communication is key to parenting. Through mediation, communication throughout the process is encouraged merely by the fact that the parties are coming to agreements in the same room together. The parents are deciding together how the parenting plan should work now and in the future, and in doing so are more vested in the outcomes. It’s impossible to co-parent their children when a couple is not able to speak to one another.

With the above being said, another misconception is that mediation would not work if the couple does not get along. Going through a divorce stirs up a lot of different emotions: anger, resentment, fear, mistrust. Mediators, however, at least trained mediators, are trained to work through these emotions with a couple in an atmosphere of open communication. Both of the spouses concerns are heard and addressed. Both have a common goal, an agreement in place that the couple can live with for the long term.
Divorce mediation is a process wherein both parties are equally acknowledged and heard. It is a process in which a mediator makes a difficult time a little easier. Both parties work to gain their independence while at the same time working together to come to a mutually beneficial and respectful agreement. With the trained mediator’s assistance neither party will dominate the other party but instead will work together in a healthy fashion to secure their future.

The last common myth of mediation is that attorneys are not needed. Only attorneys can draft legal paperwork. Therefore, an attorney is needed to draft the agreement and legal paperwork needed to be filed. Furthermore, as I indicated, I highly recommend an attorney review of the agreement once drafted, especially when there are children involved. Even with the addition of an attorney scribe and/or review, mediation is still the least costly, less time consuming and most amicable way to obtain a divorce or separation.

Author: January 7, 2016
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Divorce Mediation: The Dollars and “Sense” of it

Robyn D. Weisman, Esq. Posted on May 22, 2015

money

There is no question that ending a marriage is difficult. What happens to your children, if there are children, is probably at the top of your list of concerns. Just as you made choices in deciding to end your relationship you are now faced with a whole set of choices about your children, your retirement, your “things” and your pets.

Life is about choices. Each party must make choices about how to respond. With all of these choices and decisions, the last thing you need is to throw thousands of dollars into attorney fees for a divorce where these decisions may be made by you with the help of a mediator.

Mediation v. Litigation Litigation is the standard response when discussing divorce but the cost, delay, and distraction of full-blown litigation make other alternatives worth examining seriously in in your decision to divorce. As an attorney who used to litigate divorce and as a consultant mediator in Family Court, I have seen myriads of cases where families are torn apart or couples are spending their hard-earned money on months and sometimes years of court appearances and litigation on issues they really don’t even care about. On occasion the principles at stake are so important that litigation is worth the risk and burden. Litigation may be the only option if one party is not amenable to a more reasonable method of resolving the conflict. But in most cases it is preferable to avoid litigation and seek mediation to resolve your conflicts.
The benefits of mediation are most dramatic when compared to long drawn out process of litigation.

Benefits:
• Divorce mediation helps preserve a relationship with your spouse and reduces the tension for the sake of your children. If there are children, remember you are parents forever.
• Typically, you will be more satisfied by having arrived at your own “solutions” to the problems as opposed to having a judge make the decisions for you.
• Mediation is significantly less expensive than a litigated divorce.
• If the case goes to court, the cost may be three to five times as high — or more.
• Mediated divorce cases typically take considerably less time than a litigated divorce- typically months maybe even years shorter.
• Clients are given the control to determine the schedule instead of relying on a schedule chosen by the attorneys and the very back-logged court system. This makes divorce mediation much faster than family litigation because the case doesn’t rely on the court’s schedule.
• Creative problem solving instead of settling for the “norm”. Whereas in Court time constraints don’t allow for the time needed to arrive at creative or “different” solutions to meet the needs of each family, mediation allows for parties to arrive at what works for them and test agreements to see how they work. Parties can then make changes after seeing how these agreements work in practice. You make the decisions you can live with.
Divorce mediation is confidential and private. Clients discuss the important issues in the privacy and comfort of the mediator’s office. Don’t pay a fortune to make decisions in crowded courthouse hallway, the Courtroom or less desirable location. Don’t pay a fortune to have decisions be forced upon you when you can and will make your own decisions in mediation.
Clients always have the choice to litigate if mediation is unsuccessful. At least you didn’t start by empting your bank account to begin the process. It’s much more difficult to mediate after litigation has flared up emotional conflict and made it harder for spouses to communicate and trust each other.


Consider all of these factors when you’re deciding between litigation and mediation. Call your mediator now to find out more.

Contact Divorce Mediation & Family Services of New York for more information
631-465-2140
Disclaimer: The information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Author: May 22, 2015
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Spring Cleaning May Mean Also a New Beginning for Divorcing or Separating Spouses

By Robyn D. Weisman, Esq., Founder Divorce Mediation & Family Services of New York
Dated: May 1, 2015

spring

With Spring cleaning at hand and summer on it’s way, some of us may also be contemplating a new beginning. It could be a new job, seeing our children through graduation and starting on their new adventures, selling a home and relocating or maybe just contemplating a change in marital status or relationship. I am going to focus on marital change as this is the area I am most familiar with.

At its best, marriage should be a partnership and one that nourishes the individuality of each spouse to blossom into the best possible person each can be. The best part of ourselves should be springing out and shining above all as a result of the relationship a marriage creates.

Sometimes, however, unfortunately this may turn into the opposite situation and marriage may present challenges that may be insurmountable. I always recommend marital therapy to try to work through the issues which present a couple. However, trying to meet the expectations of a spouse that don’t match who we are can prevent us from becoming who we want to be. Divorce may be inevitable or already the status of a marriage.

As with nature, without nourishment and growth, we can feel and be defeated. Our own personal growth is what keeps us alive regardless of one’s religious or spiritual beliefs. The end of a marriage always poses a personal challenge, one met with sadness, feelings of failure and fear of the new. Think of it as an opportunity for growth; a chance to discover who we are and what is out there for us. The future and change may be scary but think of the new experiences that lie ahead and redirect your focus.

Try a new sport or new hobby. Plant some new flowers and enjoy nature. Pursue an interest you never had time to. Join new groups and meet new friends. Take risks and try new things you wouldn’t have done while married. Think of an end as a new beginning. A new chapter. The Freedom to grow your potential and blossom into a healthy flower.

Author: May 1, 2015
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Divorce Mediation for Families with Children and Why Is It Beneficial

February 26, 2015, by Robyn D. Weisman

Family Mediation

“I want to do what’s best for my children”: a phrase that is so often heard when I start mediations with couples with children. A concern both parents have for their children is to keep the children healthy during the divorce process and beyond. Why is mediation so beneficial for families with children?

Dr. Robert Emery, a professor of psychology and the director of the Center for Children, Families, and the Law at the University of Virginia, did a 12 year study of couples going through a divorce. The results were quite significant for the families with children. Choosing the right path as a means to an end, divorce or separation is key to the health of the family as mediation was found not as disruptive as going through a litigated divorce. Each party has a voice in the long term planning. Working together to come to a mutual parenting plan is the ultimate mutual goal of both parties. Communication between the parties remains intact and a goal of staying “a family” is at the forefront.
In mediation, discussing the children’s needs and the road to co-parenting is much healthier than having attorneys fighting over potential conflicts or having a judge decide what is best for the family. Should a judge decide where your child goes to school or how and where they should be brought up? Should he or she decide if your child should play soccer or a musical instrument? The judge very often makes decisions not based upon your individual case but what is easier for him or her and faster to get the case off of the desk. Instead of what you hear very often in the court battle, “I never want to see you again or I never want to speak to you again”, the conversation in mediation becomes how can we cover up the hurt, grief, anger and pain and work together for the sake of the children.
Divorce mediation or family mediation does work and in 90% of the cases that come through my door mediation becomes a completed process. An uncontested divorce becomes the goal and the end to most of the mediations. The focus on the best interests of the children and family allows the couple to reach an agreement they both feel is fair.
As Professor Emery stresses, parents who cooperate with each other clearly benefits children, whether the parents are still living together or apart. Who are the most competent people to make decision about their children’s future? The parents, who know the children the best including the relationships to all family members, should be encouraged to come to agreements on the welfare of the children. “Instead of telling parents how to bring up their children, we should honor – and encourage – agreements between parents.”, cites Professor Emery.
Walton, Oliver, and Griffin (1999) discussed the distress associated with divorce stating that it could cause a shift in mood and trigger anxiety in children as well. Despite these concerns over the psychological well-being of children of divorce, Walton et al. (1999) found that after being involved in divorce mediation, parents had decreased levels of distress and anxiety, which may overall be beneficial for children, as they may benefit from their parent’s decreased anxiety.
So when thinking of whether you want to “take your spouse to Court”, think of mediation instead, especially when you have children to consider. It can be especially helpful in divorce cases with children and has the ultimate goal of conflict resolution (Emery, 2004; Kaslow, 1984), creating harmony, and improving cooperation among participants (Lowenstein, 2009).

Author: February 26, 2015
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The Emotional Roller Coaster of Separation and Divorce

February 2, 2015
By Robyn D. Weisman, Esq., founder and director Divorce Mediation & Family Services of New York
emotions
Going through a divorce or separation has very similar emotional characteristics and feelings as the stages you go through in any grief stricken situation. Realizing this and also realizing that you are very much alive and will come out of this alive and kicking can help you along this process.
Although I am an attorney who has also studied in depth the psychological process, I am not a mental health professional. However, in my studies and experiences I have seen a pattern of emotions that do play a role in those going through a divorce or separation.

Emotion 1. Shock or Denial
Many people experience this before they go through the initial step of seeing an attorney or mediator. This is especially true when a client had not seen the divorce coming. This may delay the spouse from even meeting with legal counsel or even a mental health professional. Instead of taking pro-action, the spouse will sit back and wait, possibly even compromising their legal situation. I always recommend trying to mend the marriage at this point, however, also start preparing in case the attempt fails and divorce becomes the outcome. No one wants to be blind-sided.

Emotion 2. Sadness and possibly depression
A feeling of failure and loss is very common when a spouse does realize that an end may be in sight. You may feel overwhelmed and not much like getting out of bed and moving on. Trust in yourself and know that everyone goes through this in one form or another and know that it will get better. Change is scary but also in many cases it is for the better. Divorce or separation is not failure. There are all types of reasons people go through a divorce or separation, and it is only a means to a new future. Allow yourself to be sad and don’t make rash decisions. Gather information at this point but hold off on making any quick decisions.

Emotion 3. Anger (which often alternates with Sadness)
Everybody reacts differently but generally will act with some form of sadness or anger. Blame becomes evident, either blaming everything on the other spouse, lawyer or mediator. Listening to others gives you ammunition. Try to stay away from listening to “the Greek chorus”. People like to fuel fires, but realize every relationship and breakup is different and unique to that couple or family. Avoid also doing “whatever it takes” to simply “get out’ or to make the other spouse “suffer”.
This emotion usually does not last that long so make sure no major decisions are made in this state.
Don’t let your anger govern the process and end up in a long, costly divorce process. It will only make things worse and the anger multiply.

Emotion 4. Seeing the Light.
This is the time when a client becomes an advocate for his or her own future. Now is the time to make goals and become engaged in the process of creating your future. Reasonable decisions are at the forefront. Depression has subsided, anger is limited and now instead of emotions controlling, you are in control of your own decisions. Agreements are easier reached because a bigger picture can now be seen and realized. A couple can now either look at a possible reconciliation or possibly a separation to see if a reconciliation is possible in the future. In the alternative, a couple can now see a future can happen without the other spouse and now is the time to develop a plan for the couple and family.

Emotion 5. Final acceptance.
Toward the end of the process or when the divorce is close to finalization, clients now know what the future will look like. Again there may be sadness at this point but there may also be relief. Fear has really taken a back seat and a calming has started to set in. Some people begin to feel renewed and happy and hopeful about their future.
By the time the couple has reached this stage, a new future is now rising over the horizon and now is the time to look forward toward a new and different life full of potential.
Divorce or Separation is a journey no one wants or even imagines, so one rarely plans for it, but if you find yourself on that road, knowledge that it does get better is a great help and know that we are here for you.

Long Island’s Divorce Mediation & Family Services, is your Long Island divorce source.
68 South Service Road, Suite 100, Melville, New York 11747 631-465-2140 or 1-877- WE MEDIATE

Disclaimer: The information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Author: February 2, 2015
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A Beginner’s Parenting Guide to Separation and Divorce with Children

By Robyn D. Weisman, Esq., Founder Divorce Mediation & Family Services of New York

Dated: September 29, 2014mediation fall

Summer has ended and the school year has begun, parents who are contemplating divorce or separation often worry about the impact on children in the future and how best to make decisions for their future. Who shall have custody of the children? Where will they live and go to school? How will they do? Am I just going to be a weekend parent? How do we have equal time with the children? These are common worries and fears couples bring to mediation. The first step is to know what the lingo is when talking about children in the context of separation and divorce. There is a whole new vocabulary you should be aware of before you set out on the process.

What is Custody? When we use the word custody we are actually talking about two separate issues – legal custody and physical or residential custody.
Residential Custody: Refers to where the children will be living. Every child needs a place to list on his or her school records or medical records. What is that address?

Physical or Residential Custodial Parent: Who is going to maintain the home where the children will live most of the time. Whose residence will be listed on those school records and medical records. This is usually the parent we refer to as the custodial parent for child support purposes.

Legal Custody: This generally refers solely to the decision making authority regarding important decisions for the children, such as healthcare, education, and general welfare. This is where joint and sole custody comes into play.

Joint Legal Custody: This is the term used where both parents have agreed to make major decisions for the children together. This is the best case scenario for the children as long as the parents can work as a team for the sake of the children. Can you put aside your differences when it comes to the children?

Sole Legal Custody: When parents cannot maintain a team approach for decision making for the children, one parent is given the authority to make major decisions. This is usually the residential custodial parent. The other parent, however, who does not have legal custody will be required to be kept informed and be consulted regarding all issues involving the children.

What is this “Visitation” we hear of? Is there a requirement one parent should have visitation only alternating weekends?
Absolutely not!! I first off, never use the word “visitation”. No parent should ever be visiting their child or children.
Parenting Time is the schedule created for a family to make optimal use of the families time together and apart. A parenting time schedule should be made for when children are with each parent, including a schedule for weekdays, weekends, holidays, and vacations. Ideally, your parenting time should allow for flexibility but also provide for a specific routine your children and yourselves. As your children grow, their needs and activities will change, and so may your jobs and these schedules need to be flexible enough to accommodate those changes.

A Parenting Agreement will include all of the terms that are necessary and important to the family. These are some of the items which may go into your parenting agreement along with the varying custody arrangements and holiday and parenting time schedules.

 Which parent will pick up and drop off the children
 Education and religious concerns and upbringing
 How will the parents be advised on school and after school activities, including who will attend school conferences and events and functions.
 How they parents handle family functions that take place during year, including birthday parties, graduation parties, bar and bat mitzvahs or communions, and the like.
 Notification to parents and others if they are travelling outside of the United States with the children, and if so, are any restrictions to foreign travel. Who is responsible for the passports.
 Communication with the parent who does not have parenting time, how and when should this occur?
 Relocation issues and guidance should a parent want to relocate
 Any parenting issues including restrictions regarding substance and alcohol use of the parents, friends or neighbors who will be around the children; any other restrictions the parents have agreed upon (for instance, a family member who cannot babysit the children).

The beauty about mediation is that you may as a couple and partners as parents tailor a Parenting Plan which meets your family’s needs. Remember it is no longer only the best interests of the children that are important, but the interests of the family!

Disclaimer: The information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Author: September 29, 2014
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How Can We Free Ourselves?

freedom 2

In light of the recently passed Independence Day, it is important for us to take a step back and think about what exactly independence is and what it means to be independent. Independence is not the capacity to do whatever we want whenever we feel like it, for that would mean we are free to commit crimes. If you look at the word itself, independence is the opposite of dependence; it is the freedom from the control of another. Dependence is sometimes necessary; a child is dependent on his or her parent for food and shelter. However, dependence, especially emotional dependence, can also be dangerous. On July 4, 1776, the United States signed a Declaration of Independence, which acknowledged the unhealthy and dominating relationship between Britain and itself. The United States realized that its tie to Britain was unhealthy and, rather than remain trapped in what it was used to, the United States announced that it would no longer be dependent on the will of its colonizer.

This Independence Day, and all days moving forward, take time to look at your relationship with others. If your relationships are predicated on mutual respect, honesty, and care, then they are most likely healthy relationships. If you realize that you have been dependent on another because he or she is what is “comfortable” and are unhappy or there is mistreatment or abuse, it is important to consider that your relationship may be unhealthy. All too often we willingly remain dependent on those who mistreat us out of fear; fear of being alone, fear of further mistreatment, or a certain fear that we cannot quite place a finger on. Although this dependence may feel comfortable or familiar, we should consider approaching this obstacle in the manner our forefathers did to secure our country’s liberty and values: we must liberate ourselves from oppressive or unhealthy relationships for the good of our own well-being. The problem with an abusive or one-way relationship is that we become a tool for the well-being of another, whereas a healthy two-way relationship serves both parties equally. If there is no reciprocation of respect, then perhaps we are dependent on an unhealthy relationship.

We neither want nor deserve to be the tool only for the happiness of another, so we must strive to make sure our relationships are based on mutual respect rather than a one-way dependence on another. Seeking a healthy relationship or changing unhealthy ones can apply to friendships, parent-child relationships, sibling relationships as well as spousal relationships.

Divorce mediation seeks to sooth tensions on strained relationships by making sure both separating parties are equally acknowledged and addressed. This way, both individuals can help regain their independence as individuals while maintaining a mutually beneficial and respectful environment. Mediation is never about one party dominating another and making him or her dependent on other means, but two parties working together in a healthy, yet independent, fashion to secure the means to mutual happiness.

Disclaimer: The information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

freedom

Posted on July 7, 2014 by Justin Reyes and edited by Robyn D. Weisman, Esq.
Divorce Mediation & Family Services of New York
www.divorcemediationonline.com

Author: July 7, 2014
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Maya Angelou Challenges Us to Change Our Lives

The late Maya Angelou once said, “Nothing will work unless you do”. These words hold true and should influence all facets of our lives. If there is some aspect of our lives that is potentially harmful or making us unhappy and apart from the way we want to live, it is up to us to do something about it. Wishing for and imagining a “better place” can only take us so far – without us actively participating in our lives, we will not see these improved circumstance or a “better place”.

Is there an area in your personal, business, or other aspect of your life that you think should or wish would be different? The time is now to do something about it. Unfortunately, it is the way of the world that we tend to live with things we want to change and not deal with it. We tend to be afraid of change and working hard at something especially when we are nervous about the change.

However, not only do these problems linger, but they worsen. Your problems will not rectify themselves – you have to confront and change them to better your own life. An irreparable marriage is one problem I find most often that people do not want to deal with and understandably so. Yet, it is amazing if it is addressed promptly, amicably, and mutually, two people can move forward to a “better place”.

On the other hand, if two people who do not belong together linger, the result can have emotional ramifications much greater on them and their loved ones. Separation is not an easy choice, but it may be a better choice than allowing a hostile marriage to tear apart a family and the individuals around. I never advocate for divorce but if there is an irreparable marriage which does more harm than good, divorce mediation is a healthy way to address the need for separation that may have been ignored for too long. Like any separation, divorce mediation is not an easy process, but neither is fixing any problem in your life. Mediation’s purpose is just as the title implies, to mediate two injured sides and alleviate the pressures between the two parties in order to separate them in a way that will result in that “better place”. We must actively take charge of our lives and turn our problems into situations that “work” for us.
R.I.P. Maya Angelou

Maya Angelou

Author: May 30, 2014
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The Nuts & Bolts of Same-Sex Marriage, Parenting, and Divorce

At Last: Same Sex Marriage
There are a lot of misconceptions and misinformation out there regarding marriage and parenting between partners of the same sex. It is important before entering into any relationship, that you are aware of all of the rights, obligations and potential complications that may occur.

What is the Defense of Marriage Act or DOMA?

This act was enacted by Congress to “define and protect the institution of marriage”. This was an act passed in response to Hawaii’s lean toward legalizing same-sex marriage back in 1996. Opponents of same-sex marriage feared this happening in other states and that other states may be compelled to recognize the marriages occurring in states that legalize it. Therefore, DOMA was enacted.
Section 2, of DOMA which is still in existence basically allows each state to determine whether they will give effect to the same-sex marriages allowed in other states.
Section 3, of DOMA, defined marriage as between one man and one woman.
DOMA denied same-sex married couples the federal rights and benefits of marriage.

On June 26, 2013, the US Supreme Court struck down Section 3 of DOMA, finding the statute violated the 5th Amendment and with that granted married same-sex couples the same benefits and protections under federal law as opposite-sex married couples.

What rights are now allowed same-sexed couples in New York?

• Federal & New York State income tax return filing status: can now file “married” and it entitles them to the marital deduction
• Recognized for estate and gift tax; applies even if the couple lives in a jurisdiction that doesn’t recognize same-sex marriage; Same-sex married couples can transfer property to each other free of gift tax
• If divorcing, spousal maintenance is now a tax deduction for the payor and income for the recipient
• Retirement plans are now subject to transfer and distribution on divorce without penalty
• Social Security survivor benefits are available as well as social security spousal election
• NYS recognizes that a child born of a same-sex marriage is the legal child of both parents

However, please speak with an attorney or one knowledgeable about parental rights and obligations of same-sex parents before or even after you have entered into this parental relationship as there are some consequences that you need to be aware of and an adoption may be essential and recommended. Once a relocation occurs, DOMA Section 2 is still in existence! So the relationship may not be recognized! Adoption may be essential.

• Veteran’s benefits are now available to same-sex spouses
• Immigration status and green card sponsorship
• Same-sex spouses whose employers provide health insurance benefits are obligated to provide the insurance and COBRA benefits to same-sex spouse of an employee
• Family Medical Leave Act Protections

Same-sex couples can now legally marry in 17 states and the District of Columbia. States that haven’t enacted the equality act do not have to recognize the marriage. Hopefully, DOMA Section 2 will one day be also struck down.
Be also wary, that if you entered into a civil union in Rhode Island or Delaware, these States have adopted legislation that the civil unions are automatically converted to marriages! Whether you wanted it or not!

These are the nuts and bolts, and please once again if there are children involved make sure you contact either an attorney or attorney/mediator that knows the potential complications to avoid any in the future!

What we can Offer

Same-sex couples can gain tremendous benefits from using divorce mediation to create divorce and parenting agreements, as well as prenuptial agreements.
Like divorce for other married couples, dissolving a partnership or same sex marriage can be costly if using the traditional divorce process. The process can drag out for months. There can be bitter fights over who gets the car, the couch, and how much time and when each party can spend with the child or children. Partnerships or same sex marriage couples can sit together in a room privately to work out the details of their separation with an experienced mediator.
The result is less emotional distress for all of the parties involved. Divorce mediation helps individuals to work through the terms of the separation or divorce in a peaceful, private, process. It allows the final agreements to more fair and suitable for all parties involved.

Robyn D. Weisman, Esq.
Divorce Mediation & Family Services of New York, Ltd.
631-465-2140

Author: May 7, 2014
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