As part of our training as divorce mediators in New Jersey, we are given many books and articles to read in order to help us learn different techniques to help people through conflict.  There is a classic book written by Roger Fisher and William Ury called “Getting to Yes: Negotiating Agreement Without Giving In” which teaches us the important concept of bargaining over positions versus interests.  The authors define bargaining over positions as each party taking a side, arguing for it and then making concessions along the way to reach a compromise.  The example they give is that of a customer and the owner of an antique store haggling over the price of a vase in which one starts with a high price and one with a low price each moving towards the middle until they get stuck where neither of them wants to budge anymore and no one is happy.  What does this have to do with divorce mediation?  I’m glad you asked.

When we work with couples here at Equitable Mediation Services, we look to find out what the root of their requests are.  That is, what are their interests.  Is it that one spouse really wants $1000 a month in alimony / spousal support or are they really just concerned they won’t have enough to live?  Is that toaster really all that important to the other spouse or is it that they feel they’re being taken advantage of and this is their “line in the sand?”  Taking the time to get to the real reasons behind people’s concerns is one of the real benefits of mediation and something we’re committed to each and every session we mediate.  What’s wrong with bargaining over positions?  Isn’t that what some would call “win-win?”  Let me ask you something: have you ever spoken to anyone who considered their divorce a “win?”

Me neither.

So what happens?  If you’re like most of us, you dig your heels in and refuse to budge, hanging on to a position that may or may not be what you want but it’s your position and no one is going to move you from it.  You become so committed to it that you worry if you give any more, you’ll either be perceived as weak or not committed and that the other side will go on the attack.  Sad to say, but not all divorces are as peaceful as many of those which are mediated and I guess anyone involved in such a proceeding doesn’t want to give the proverbial inch as they are worried they will be asked for a yard.  You wind up appearing stubborn and in the end, probably not getting what you wanted anyway.

Mediation tries to keep the peace, recognize that people can disagree over individual issues but still reach an agreement that works for both of them on the whole and that it’s OK to change your minds in such an emotional time.  By keeping the lines of communication open and finding common interests such as your children, divorce mediation truly is the smarter way to divorce.

If you have any questions on how Equitable Mediation Services can help you with your divorce mediation, please do not hesitate to contact us for a free consultation in either your home or one of our six New Jersey office locations and we’ll be happy to answer any questions you may have.

In a recent article in the Journal of Accountancy author Valerie Chambers brought to light an important issue you need to consider during divorce mediation: who gets to claim the tax deduction for your children?  It seems that regardless of what’s written in the divorce decree or your Memorandum of Understanding drafted during mediation, the tax deduction will automatically go to the custodial parent for any tax years after July 1, 2008 unless a written waiver is filled out and filed along with your divorce or mediation papers.  The form is known as Form 8332,  Release of Claim to Exemption for Child of Divorced or Separated Parents and a copy of the form can be found on our Helpful Links page under the heading Tax Issues & IRS Publications: Federal on our website.

As any of you who have been following my blog, you know that during discussions of the Parenting Plans, during divorce mediation we determine the number of nights the child or children spend with each parent.  Based on those numbers (known as the “counting nights rule”) the custodial parent is deemed to be the parent with whom the child primarily resides with based on the number of overnights.  Logically it would seem that the parent who has the child more of the time should get to claim the deduction.  But what about parents with multiple children or parents who wish to share the deduction?  Can the tax deductions be shared even if the children primarily reside with the one parent or is split evenly?  The answer is yes.

This regulation is not only important for claiming the tax deduction but also for claiming the $1000 per year child tax credit for each qualifying child under the age of 17.  As this is an issue you will want to learn more about, please consult with your accountant or financial professional if you should have further questions.  If you are in need of such a professional, Equitable Mediation Services offers links to such individuals on our Helpful Links page.  If you have any questions about divorce, mediation or to learn more about the benefits of mediation please feel free to contact us and we’d be happy to set up a free, no obligation consultation in your home or one of our six New Jersey office locations.

As part of our continuing series on divorce mediation with Equitable Mediation Services here in central New Jersey, this installment will focus on the Equitable Distribution of Marital Assets. Having gotten through in our first session the majority of the Parenting Plan (for those couples with children) we move on to the next step in the process which is a little more complicated.  Most couples can agree to do what’s in the best interest of their children but when it comes to “who gets what” the story changes.  It is amazing how important that toaster oven becomes when someone is told they can’t have it.

What does the “Equitable Distribution of Marital Assets” mean in plain English?  Basically, this is the part of divorce mediation where we take the assets (and liabilities) you and your spouse have acquired during your marriage and divide them.  Does this mean they will be split 50/50?  Not necessarily.  The term equitable is defined as “Exhibiting or characterized by equity; impartial or reasonable in judgment or dispensation; not necessarily equal or the same.” Notice that nowhere in this definition does it say 50/50.  This is a common misconception that many couples going through divorce mediation in the State of New Jersey have.

You see an item may have more value to one individual than another and these value judgments can be used to in effect “trade-off” among the parties in order to create a settlement that is fair to both sides.  I use the following example from my article on Equitable Distribution:

NJ Equitable Distribution: An Example

Let’s say a couple that has been married 25 years has two items each of sentimental value – the husband’s collection of antique clocks that he’s collected for the past 15 years worth $2,000 and the wife’s collection of rare lamps that she has collected for the past 20 years worth $10,000, both marital assets by definition. In this example, if the husband had a sentimental attachment to his clocks and was fully aware that by agreeing to relinquish his share of the lamp collection ($5,000) so that he may garner his wife’s share of the clock collection ($1,000) he effectively gives up $4,000 in additional assets to his former spouse, the courts will not seek to adjust the distribution. And while in these situations, typically the discrepancy in assets is equaled out somewhere else (perhaps through additional funds from a bank account) it is not mandatory and the disparity can stand and as long as each party understands the differences and considers the overall distribution of property, fair and equitable, regardless of the total at the bottom of the “balance sheet.”

One of the benefits of mediation is that it allows the parties to decide what they feel is important, fair and has value and factor those judgments into their thinking and negotiating.  They do not have a judge or an attorney telling them to try and grab everything they can because really at the end of the day fairness is in the eye of the beholder and if the toaster oven really isn’t that important, then why bother fighting over it?   Like with assets, liabilities are equitably distributed in the same way.  The parties will each be responsible for “their share” of the liabilities incurred during the marriage in a manner and arrangement they both agree is fair and equitable.

So where does this discussion on equitable distribution leave us? That is truly up to the couple to decide. While NJ law does provide some guidelines, the concept of equitable distribution is truly based on what the couple considers fair and reasonable. Once you’ve had a chance to review the New Jersey Equitable Distribution Criteria, you will see the factors are as varied as the possessions that may require distribution so it’s always best to come to an agreement that works for both of you rather than leaving it to the courts, attorneys and judges to decide.