Issues Surrounding Jointly Held Property in Mediation

One of the most common issues discussed lately during mediation sessions with clients here at Equitable Mediation Services is how to handle the marital home.  With housing prices dropping like the temperature in February, divorcing couples are reluctant to sell the martial home right away and are looking to the their NJ divorce mediator to help them manage what can be an untenable situation.  Typically when couples divorce, the house is sold (if owned jointly) and the proceeds (typically there are proceeds but lately, not so much) are used to pay down marital debt or better yet, used to start a new life.  But what happens when the value of the home is less than what the couple paid for it or owe on the home?  In today’s unstable housing market, this is a more common situation than you think.

As part of our conversations on Equitable Distribution, the mediator works with the couple decide to draft an agreement that addresses how the house will be handled until such time it is sold.  When the house is sold as part of the divorce either the gain or the loss is divided among the parties as they have negotiated during mediation.  However, if one party chooses to live in the martial home post-divorce yet due to the economy, they choose not to sell the house, some complications can arise.

The first issue is that of maintenance.  One might think it fair that if someone is living in the marital home post divorce, they should make the monthly mortgage payment since it’s their place of residence and if they were renting an apartment, they would have to pay that.  So why not view the mortgage as “rent?”  Ah, but it’s not that simple.  What if the kitchen needs a new coat of paint?  Who pays for that?  The person living in the martial home or both of you?  If they didn’t like the color and chose to change it, is it up to them or is it the responsibility of both parties.  But what if the roof starts to leak and is in need of repair?  Who pays for that?

Next is the issue of equity.  When one makes a monthly mortgage payment, if you’re like most people, a portion of it goes to your taxes, a portion goes to interest and a portion goes to principal.  So what is actually happening is the person making the mortgage payment (even though both parties still technically own the home) is paying down the actual debt of the home so that upon sale, both parties benefits from a greater profit.  So, the person paying the mortgage makes the payment but both parties share the benefit. Does that seem fair?  Maybe if it’s for a shorter period of time but what if the market doesn’t turn around and the payments continue for 5 years and the mortgage gets close to being paid off?

Good question and one I can’t give you the answer to.

You see when using mediation services, it is my view that it is the mediator’s job to inform you of these issues and let the parties decide how they wish to handle them.  And while making you aware of the issue may not make either party change their mind regarding the outcome, it is by informing and empowering the parties to make decisions that work for them is one of the ways that makes mediation the smarter way to divorce.

If you would like to discuss your particular situation, we offer a free, no-obligation consultation in one of our six central NJ office locations or in the privacy of the marital home.  Please feel free to contact us today to learn how divorce mediation with Equitable Mediation Services can help you settle all the issues surrounding your divorce peacefully, efficiently and with as little stress to you and your family as possible.

Divorce Mediation May Be Theraputeic but it’s not Therapy

For those of you who have been reading the Equitable Mediation Services NJ divorce mediation blog, you have seen me outline many of the benefits of mediation on a variety of topics from substantial costs savings to a less adversarial process.  And while there are many others too numerous to mention, I wanted to take some time in today’s article to outline a subtle difference, as the title of this post suggests, between another mediation benefit.

Divorce mediators in New Jersey come from a variety of backgrounds: legal, psychological and financial with the breakout falling somewhere along the lines of 60% legal, 30% psychological and 10% financial.   During divorce mediation sessions, you already know the four main areas we cover are:

1. Parenting Plans
2. Equitable Distribution of Marital Assets and Liabilities
3. NJ Child Support
4. Spousal Support / Alimony

and while these may be the high level topics of discussion, during each of these sections, we touch on topics related to: legal matters, psychological matters and financial matters.  As a NJ divorce mediator my background is in the financial and legal areas so I tend to work especially hard at recognizing the needs of my clients on the psychological end of the spectrum.  But the one thing I caution anyone who enters divorce mediation is not to expect it to turn into marriage counseling or therapy.  Even though having these conversations and learning to work together to settle your differences can be therapeutic, if you are need of such services, you should seek the help of a professional in that arena.

In a recent post I discussed how some people who are reluctant to get a divorce turn to mediation as a way to slow the process.  I believe they feel that by going through mediation their spouse will see what a good person they are by cooperating that they’ll want to take them back.   To be honest, by the time couples seek mediation services they should (and I emphasize should) have already made the decision to divorce and are simply using mediation as a means to settle their divorce.  As it’s common for one of the partners to be farther down the road in terms of wanting a divorce than the other, the reluctant spouse may need some help in dealing with the flood of emotions that may overwhelm them during the process.  That’s where a professional counselor can help.

One of the good things about divorce mediation is that we as NJ divorce mediators are trained to recognize our clients needs and either guide them through the divorce process of refer them to professionals that can help them with a particular need.  Each of us comes to divorce from a different perspective and has our own unique circumstances and needs and so the need for professional help can vary from client to client.  Some need help understanding their finances as perhaps one spouse took care of all of that for the past 20 years.  One may need help dealing with the hurt and anger they are feeling regarding the divorce and one may have children who aren’t taking the divorce well and the little ones are in need of someone to talk to.  In all of these circumstances, Equitable Mediation Services can help.  We recognize the difference between therapeutic release and the need for therapy and can direct you to caring professionals who can help.

Divorce is an emotional time and you don’t have to do it alone.  By considering mediation you’ve already taken a big step towards a smarter way to divorce.  By avoiding the adversarial legal system, you are actively choosing to manage what happens to you, your children and your future and that’s a great first step.  So when you are ready, please feel free to contact us to set up a free, no obligation consultation in one of our six central NJ area office locations where will will sit down with you and your spouse and learn more about your particular situation and explain more about divorce mediation and how mediation can benefit both of you and your children.

Using Mediation with an Unwilling Participant

One of the things we commonly see at Equitable Mediation Services of New Jersey are couples in which one participant is in favor of using our divorce mediation services and one is not.  One of the individuals is convinced of the benefits of mediation and one of them doesn’t know a single thing about divorce mediation and is reluctant or unwilling to even come to a free consultation.  The thing about mediation is this: unlike litigating when the participants are compelled by law to respond to a complaint and show up on a specific date for a court-hearing, mediation is a voluntary process in which both parties must be willing to come to on their own, without coercion.  Try as we might, there is simply no way to get an unwilling party to come to mediation if they simply do not want to.

Does that mean that it doesn’t take a little bit of explaining to get your spouse to come to a mediation session or free consultation?  Of course not.  More often than not, one of you has been thinking about getting a divorce for a longer period of time than the other.  You’ve perhaps lost sleep over it, thought about it while driving in your car only to find you missed your turn-off or sat at your desk at work worried about what your life might look like post-divorce.  By the time you’ve reached the decision to get a divorce and seek out a NJ divorce mediator, may have been months and possibly years before you finally take that next step towards your future.

Add to this is more likely than not, your spouse has little or only some idea of what you might be thinking.  Perhaps they too have felt the strain on your relationship lately or maybe you’ve even floated the idea in a discussion with them before coming to a final decision but the chances are one of you has been thinking of it a lot more than the other.  So when the time comes and you’re ready to proceed with divorce mediation, it may come as quite a shock to the other party that you’re already this far down the road.  This is usually exaggerated by the fact that one of the reasons you may be contemplating a divorce in the first place is your lack of communication or of being heard by your spouse.  Both are  common causes of marital duress and often lead to feeling of isolation and unhappiness and cause people to contemplate divorce.

So how do we address the unwilling participant’s reluctance?  Well, one thing is a sad but common truth:  in the State of New Jersey it may take two individuals to get married but it only takes one to get divorced.  And when it comes to getting divorce you have a choice.  The way I see it and explain it to them is this:

Litigate and:

• Spend anywhere from $27,000 to $78,000 on average
• Destroy what little relationship you have left with you soon to be ex-spouse
• Ruin any chance of a normal relationship with your children as litigation brings out the worst in everyone and trust me, they’ll hold it against you for a long, long time
• Have your marriage judged in the court of public opinion as litigated divorces are a part of the public record and anyone can come into a courtroom and watch the proceedings as they happen (and believe me, people do it just for the gossip)

Or Mediate and:

• Spend about $5,000 to $7,000 total.
• Maintain any chance of a relationship you may have with your ex as remember they are the mother / father of your children and you will have to see them for as long as you interact with regard to the kids
• Work to build a healthy relationship with your children by letting them know you aren’t going anywhere and you’re still their mom or dad instead of spending emotional capital on answer lawyer’s questions and appearing in court
• Discuss these sensitive issues in complete confidentiality and privacy, off the public record in a private mediation session.

Is everyone rational enough to see these two lists and choose mediation?  No, probably not.  But I can tell you that from experience that anyone who isn’t rational enough to do so, isn’t a good candidate for mediation so you’ll probably wind up fighting it out in court anyway.  So approach your spouse, show them this article and if you think you’re a good candidate for mediation, contact us and we’d be happy to set up a free, no-obligation consultation for your and your spouse to come in and see us one of our six central NJ office locations.   We know that once you learn more about divorce mediation and how mediation can benefit you, you’ll truly agree it is the smarter way to divorce.

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