It is important that persons considering Divorce Mediation understand the basic difference between Divorce Mediation and the normal process of going to a divorce attorney who starts a divorce lawsuit against your spouse. In Divorce Mediation, you and your spouse jointly decide to begin voluntary settlement negotiations with the help of the trained neutral person. Mr. Leininger has over 27 years of experience as a Divorce Mediator. He is certified by the Florida Supreme as a Family Mediator. He also has over 40 years experience as a Family Law attorney. Mr. Leininger has appeared on national TV shows including CBS Morning Show, The Today Show, The Phil Donahue Show, the Sallie Jess raphael Show, etc He is generally acknowedged as one of the most experienced Divorce Mediators serving the residents of Staten Island and Brooklyn. .The mediator’s job is to assist both of you to discuss each of your own goals, your desires with regard to rearing your children, support, division of assets, etc. The Divorce Mediator has no decision-making power. Thus, the Divorce Mediator cannot order one of you to pay child support to the other or to transfer title to a house to the other person. Rather, the Divorce Mediator helps promote communication and cooperation between the two of you so that the two of you can control the decisions that will effect your lives.
If one spouse goes to a regular Divorce Attorney, the attorney will frequently advise the client to institute suit for divorce and, usually, to make application to the Court for interim child support, interim alimony, etc. The other spouse, upon being served with Court papers, will then hire his or her own matrimonial attorney. At this point, most attorneys will advise their clients not to discuss the case with their spouse, but rather allow all negotiations to be handled through the respective attorneys.
The Divorce Mediator seeks, on the other hand, to develop various settlement options and to discuss them with both parties in an effort to get both parties to agree on a “win-win” settlement.
The first and most important goal of Divorce Mediation is to reach an agreement between the parties. However, experience has shown us that Divorce Mediation also helps promote communication between the spouses and a spirit of cooperation between them. It also lets the both of you control the decisions that will effect your lives in the future, rather than divorce attorneys, or a Judge. Divorce Mediation generally costs between $2,500 and $5,000 (total for both parties) although sometimes fees can be lower or higher in unusual cases. Divorce Litigation, on the other hand, frequently results in each party paying lawyers’ fees of $10,000, $20,000, $30,000 or even $50,000 or more!
Another benefit of Divorce Mediation over the traditional Divorce Court procedure is that Divorce Mediation is totally confidential. If one or both parties has been or are presently working “off the books”, or they have sources of income which they have not reported on their income tax returns, Divorce Mediation is often preferable to Court Litigation because the entire Divorce Mediation process is confidential and the Divorce Mediator is under no obligation, unlike a Judge, to notify the IRS about unreported cash income.
If children are involved, Divorce Mediation is often extremely useful since it will substantially reduce the conflict between parents. Divorce Court tactics, such as making a demand for custody not out of love for the children, but as a negotiating ploy to reduce child support payments, are totally foreign to the concept of Divorce Mediation where both of you put your children’s needs first.
Lastly, Divorce Mediation can often be much quicker than traditional Divorce Court litigation. To obtain a contested divorce in Staten Island generally takes somewhere between 10 and 18 months. With Divorce Mediation, on the other hand, the parties generally reach a settlement agreement with 4 and 8 weeks. It then usually takes about 3 months thereafter for the divorce to be obtained, but generally neither party has to appear in Court.
Generally, Divorce Mediation is not recommended in two cases. First, where there has been a history of physical or severe emotional abuse of one spouse by the other. In such cases, the possibility that one spouse will be intimidated by the other party is simply too great to recommend Divorce Mediation. The second instance where Divorce Mediation is generally not a good idea is where one party lacks substantial financial information about the other party’s personal or business affairs and that party does not trust their spouse to be completely honest and candid with them. For example, if your spouse runs a large cash business and you believe there may be hundreds of thousands of dollars of unreported cash and you simply have no trust that your spouse will admit what his or her real income is from that business operation. Another example would be where you believe that your spouse has Swiss bank account with hundreds of thousands of dollars in it, but you have no definite proof of same and you do not believe that your spouse will admit the truth. In these two examples, Divorce Mediation is generally not recommended and you should consult an experienced divorce attorney.
If after reading this information, you and your spouse both feel that Divorce Mediation makes sense to the both of you, then you should call our office and advise our receptionist that you wish to schedule an initial orientation session for Divorce Mediation. Mr. Leininger is generally available for Zoom mediation between 10:00 A.M. and 8:00 P.M. Monday through Friday and on Saturdays from 10:30 A.M. to 2:00 P.M. There is usually no need for either spouse to take off from work or pay for child caring to meet the mediator because he offers evening and weekend hours. This orientation session takes approximately one-half hour and there is no fee.. At the conclusion of that orientation session, the two of you will then have three choices. First, if either of you decides that Divorce Mediation is not for you, that ends the matter and neither of you has any further obligation to our law firm. On the other hand, if both of you wish to proceed to Divorce Mediation, we will then schedule your formal initial Divorce Mediation session, generally within a week to ten days after the orientation session. You will be given a Retainer letter and will be asked to sign it along with a Retainer Deposit of $2,500, which is the total retainer deposit for both spouses. This Retainer Deposit is refundable to the extent not used. The third option is for the two of you to simply advise us that you wish to think over the whole process, which is also fine.
Once the two of you do decide to proceed, you will then call our office and advise us that you now definitely wish to hire us for divorce mediation and we will schedule the first regular Mediation session.
We hope that this brief explanation will help you and your spouse to decide whether nor not you wish to utilize Divorce Mediation Services.
2. Mediation Situations
Mediation may be used in any of the following situations:
a. When one or both people in a marriage decide to live separately, but are undecided about divorce;
3. Mediation Structure
a. After an orientation session, clients usually come for mediation at least once a week. Sessions are usually 90 minutes in length, unless otherwise agreed upon by both parties and the mediator.
b. Mediation is conducted by one mediator.
c. The mediator is responsible for determining the order in which the issues in mediation are discussed and/or deciding whether an issue is opened or closed.
d. If either spouse decides to cancel a meditation appointment, that spouse shall notify the mediator and the other client not later than 48 hours in advance of the scheduled mediation session. Otherwise the mediator shall be entitled to full payment for the missed session.
4. Subject of Mediation
In Mediation, the clients decide four main settlement areas: parenting arrangements (including custody) for minor children; division of marital property; spousal support and child support. The tax consequences of these decisions will also be considered and should be reviewed by tax experts.
a. Parenting Arrangements and Custody
b. Divisions of marital Property
– Division of Real Estate – such as ownership, use of or sale of:
– Division of other property – such as:
Stocks, bonds or other securities
Savings and bank accounts
Automobiles, boats and other vehicles
Business and professional practices and assets
Division of debts and liabilities – such as:
c. Spousal Support
– Type and duration of payments
– Life Insurance
d. Child Support
– Periodic payments
– College education
– Medical and dental care
– Hospitalization Insurance
– Life Insurance
5. Parenting Guidelines (including custody)
There are a number of factors that the parents shall consider in deciding on their parenting plan for minor children. However, regardless of the form the parents choose, it is important that they establish a cooperative parenting arrangement so that they may exercise their continuing responsibilities to their child(ren). The factors to be considered include but are not limited to the following:
a. Each child needs both parents and has a right to a continuing relationship with both.
b. Each child has certain needs and interests which may be important to his or her continued well-being.
c. The child’s best interests may be significantly affected by his or her interaction with parents, brothers and sisters, grandparents, or others.
d. The child’s adjustment to home, school and community.
e. Each parent’s wishes concerning custody.
f. The concerns of each child regarding living arrangements.
g. However, the conduct of either parent in his or her personal life which does not affect his or her relationship with the child is not a factor.
h. The parents shall consider living arrangements as separate from the legal designation of custody. There are as many possible options for living arrangements as there are families. Parents will decide such things as weekly schedules, holiday schedules, vacations, child care, etc.
I. In addition to a parenting plan, there are several options for legal custody. These options are:
A: Joint Custody: Joint custodial parents agree to share the responsibility in determining the child(ren)’s upbringing, including education, health care and religious training, and determining where the child(ren) live(s). This can vary from equal time with each parent to one parent providing the primary residence. Sharing the responsibility means sharing the decision-making around these issues. Please note that in New York, a Court will not generally provide for joint custody in a Judgment of Divorce unless both parents request it.
B: Sole Custody/Visitation: The custodial parent may determine the child’s upbringing, including education, health care and religious training, unless the parents agree otherwise. The non-custodial parent has a right and a responsibility to reasonable time spent with the child(ren), the schedule arrived at in mediation unless they mutually decide upon a change.
C: Split Custody/Visitation: In split custody, each parent has primary responsibility for certain of the children and not for the remaining child(ren). Each may determine the upbringing, including education, health care and religious training of the child(ren) in his or her custody. Each parent maintains the rights and responsibilities of parenthood, including ” visitation”, to the child(ren) not in his/her custody.
6. Guidelines for the Division of Marital Property
The mediator will assist the parties dissolving a marriage in reaching an agreement concerning the division of marital property. This shall be without regard to marital misconduct. The parties will arrive at a fair and equitable division after considering all relevant factors, including the following:
a. Marital property is all property acquired by either person during the marriage, but prior to the institution of a divorce action or the signing of a separation agreement, with the exception of the following:
(1) Property acquired by gift or inheritance;
(2) Property acquired in exchange for gifts or inheritance;
(3) Proceeds of negligence actions or Workers’ Compensation Awards;
(4) Property which the spouses agree to exclude.
b. The situation may arise in which property determined to be non- marital by one of the above exceptions or property acquired before the marriage has increased in value during the marriage due to active ownership by either person. In that event, the portion of the increase due to that active ownership is considered to be marital property. Active and passive ownership are defined as follows:
(1) Active ownership means such actions as making capital improvements, usage management, and other efforts intended to enhance the value of the property.
(2) Passive ownership means that the owner and/or spouse or person merely had possession of the property, but made no attempts to enhance the value. A classic example would be where one party owned $10,000 of IBM stock prior to the marriage which is now worth $50,000, due solely to stock market increases in the value of the IBM stock over the years.
(3) If either person’s primary role in the marital partnership was as financial provider or homemaker, such a “division of labor” does not entitle either person to a greater or lesser portion of the marital property and the subsequent division shall be an equitable one.
c. If property fits the definitions given in sections 6a & 6b, it is marital property, regardless of how it is titled.
d. The division of marital property may be affected by the economic circumstances of each person at the time of division. An example would be the retention of the family home by one person or the right to live there for a reasonable period of time in order to provide living space to the children.
e. The value of marital property shall be ascertained as accurately as possible. This value shall be determined (for the purposes of this section) as of the date of the first mediation session, following the orientation.
f. If property that has been determined to be the sole property of either person has increased or decreased in value during the marriage, or has been depleted for marital purposes, then this may also be considered.
7. Spousal Support
Each party completes detailed budget forms and financial statements. This information is used by the parties to determine support needs and ability to pay. Other factors to be considered are:
a. The financial resources of the person seeking support, including ownership of property and the ability to meet needs independently.
b. The limitation or inability to maintain outside employment due to having primary care taking responsibilities for one or more children.
c. The need for further training or education.
d. The standard of living established during the marriage with the understanding that it costs more to operate two households than it does to run one.
e. The length of the marriage.
f. The age and physical and emotional condition of each person.
g. The economic situation of the person who will pay support.
h. Lastly, since January 25, 2016 New York has post-divorce Alimony Guidelines which the Mediator will calculate during your mediation. The Alimony Guidelines amount can be adjusted higher or lower based upon the needs of the needs of the poorer spouse, etc.
8. Child Support Guidelines
The support of their child(ren) is the responsibility of both parents. Except where the use of same would be unjust or inappropriate, child support is usually based upon the State’s Child Support Guidelines.
9. Full Disclosure
Each client shall furnish a complete accounting of their financial situation to each other and the mediator. This will include:
a. A monthly expense budget outlining his or her own needs and those of the children.
b. A financial information and income statement. This shows a listing of assets and liabilities plus income based on wages, interest, dividends, etc.
c. Income Tax Returns for the previous two years.
d. Written evaluations of marital property, bank statements, cancelled checks, records of stock transaction or other pertinent documents requested by the mediator.
e. The clients agree to include a clause in their settlement agreement indicating they have each made full financial disclosure in the mediation process.
10. Confidentiality of Mediation
By undertaking these rules, the mediator and clients mutually agree with one another as follows:
a. Mediation is a procedure for reaching settlement of a dispute between the parties, either in litigation or potentially in litigation.
b. All communication between the parties and the mediator relating to the dispute shall come within the purview of the rules of evidence. These rules prohibit either client from introducing into evidence against the other, information disclosed with a view toward settlement.
c. The parties shall be prohibited through their adoption of these rules from calling either the mediator or any agent thereof as a witness in litigation of any description, in which they are called upon to testify as to any matter regarding the mediation proceeding. The clients will also be prohibited from requiring the production in Court of any records, documents or tape recordings made by the mediator.
11. Transfer of Property During Mediation
The parties agree not to transfer nor dispose of any real or personal property (if property is an issue to be discussed), without prior notice to each other, unless in the normal course of business or for the necessities of life. During mediation, one person may wish to propose a transfer of personal property. If this transfer will affect ten (10) percent or more of the total of his or her assets, there must be written consent obtained from the other person at least ten (10) days in advance of the proposed transaction. Transactions in violation of this rule shall be voidable and shall be set aside if the injured party makes application to a Court of competent jurisdiction.
12. Attendance at Mediation Sessions
The parties shall arrange their business and personal affairs so as to provide for attending mediation sessions once each week.
13. Interpretation and Application of the Rules
The mediator will interpret and apply these rules, after having fully explained their use to the parties.
Published as a service to our clients by
WILLIAM J. LEININGER, M.A., J.D..
Practice limited in New York to Divorce Mediation
677 N. Washington Blvd.
Sarasota, Florida 34236