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On June 19, 2018, the Pennsylvania Supreme Court, in an Opinion that could be described as unanimous, ruled that the trial court was correct when it decided that it could deviate from presumptive minimum guidelines in a high-end child support case. The case has been floating about for quite some time. We wrote about the Superior Court decision back on December 7, 2016 and we provided the incomes the Delaware County Court had to look at:

Mom Dad
2009 184,000 4,000,000
2010 139,000 1,100,000
2011 145,000 2,300,000
2012 105,000 15,500,000

The case arises from a property settlement agreement which stated that the parties would exchange tax returns and calculate child support annually based on respective net income “and Pennsylvania guidelines, provided,…either party may apply to the court to adjust child support…based on relevant factors.” Those last few words may have made a world of difference because if the sentence ended without reference to “relevant factors”, the obligor may have been stuck with the presumptive minimum contained in the guidelines. Recall that the right to support as a matter of contract in a divorce setting may yield a far different result than one decided in support court.

One cannot fault the majority opinion of Justice Baer, which is itself, lauded by the concurring opinion of Justice Wecht. The line of reasoning is fairly clear. Child support guidelines are premised upon economic studies of child needs. However, as income climbs higher and higher, needs become less easily calculated. When it adopted “guidelines” for families netting more than $30,000 a month, the Court merely extrapolated and largely speculated about those needs. So, even though there is a guideline amount and that guideline amount in Hanrahan, produced a support order in the range of $60,000 a month, the parties should have the right to make a record about the specific needs of such families and dip into the evidentiary well known as “lifestyle.”

What concerns this writer is, just what is a trial court to do with this “lifestyle” question and just how far does the evidence go? Needless to say, the law seems quite clear that if I make $7,500 a month and my ex brings down $2,500, my “lifestyle” testimony is not going to get very far. I have to fit my lifestyle around the guidelines, and unless my kids have some very unusual needs, their “lifestyle” is not going to get any more consideration than mine or that of the prodigal mother.

But once the income balloon ascends above 30,000 feet, the door of Melzer v. Witsberger appears to spring open despite the language of Mascaro v. Mascaro. This means inquiries into “lifestyle” and that is a pit, which has no bottom. The facts in Hanrahan illustrate the point. Look at Mr. Hanrahan’s income. A million or two a year invites travel on timeshare jets or acquisition of a reasonably fancy Cessna. Get to four million in income and now a Learjet 35 falls into play. As I reach the million a month club, I have arrived in Gulfstream territory although my plane will probably be an older model and I may not be able to lug around more than seven friends and family.

Are judges supposed to hear this? Moreover, what wisdom can their life experience impart when the pinnacle of their lifestyle is an upgrade to first class on a scheduled commercial airline? At what level of income do we abandon commercial aviation or propeller driven transportation in favor of jet aircraft? In addition, what do we do in instances where the income is a one off; e.g., a lottery win or sale of a business, or the magnificent income is not sustained. Once children have gone “private”, can we ask them to downgrade back to commercial aviation?

I have participated in these trials and suffice to say, after a few hours they become tedious. The obligors love to wax on about how frugal they can be and “in touch” with their humble beginnings, whether real or imagined. Obligees remember seeing Parsifal from the box seats at the Bayreuth Festspielhaus and knocking back glasses of Krug Clos du Mesnil at intermission with the Obligor before the champagne and the marriage soured. The judge has to listen to how much the fourteen year old adores Wagner and the “Ring Cycle” while the judge wonders whether the “ring cycle” is a setting on the Whirlpool in his laundry room.

Reason tells us that $2,000 a day is a lot of child support. The Supreme Court was right to say that in settings such as this, expenses do matter. But, in communications I have had with lawyers who lived through the days of Melzer, there is fear that unless someone limits the “needs” and “expense” testimony, we will have courts hearing days of testimony. Taxpayers in a setting will underwrite the judicial time where this obligor’s 2012 daily income rivaled the annual household income of the mean Pennsylvania household. That is not good for anyone, except perhaps the lawyers asking whether little Rachel eschews cotton as she has grown used to cashmere.

Hanrahan v. Bakker 19 MAP 2017   [J-82-2017]   6/19/2018

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A recent case published by the Superior Court gives us some insight into one issue which has thus far evaded appellate review and affirms in principle that alimony remains a secondary remedy and one which is awarded based upon need.

Core facts are:

Husband: 61

Wife: 56

Both employed in health care industry.

Husband’s net: $16,000

Wife’s net: $10,400

(60/40)

25 year marriage

Wife received support $2,200 in support since 2012.

Court awarded 55/45 split in favor of Wife.  The gross estate is $7,000,000+ pensions.

Wife asserted that Husband had dissipated $4.4 million of property on an extramarital relationship.  She appealed claiming the award did not give sufficient consideration to that fact.  The Trial Court opinion acknowledged expenditures outside the purposes of the marriage but concluded, “It is not the role of the Court to recoup expenditures made during the marriage by one party that the other party does not know about or does not agree with or to make a party whole again.”  It then added that in effecting an equitable distribution “considerable consideration” to contributions to creation of and dissipation of assets.

It appears that the Trial Court made its distribution with a blanket statement that it had “reviewed all the factors.”  The Superior Court concludes that the Trial Court carefully examined the distribution factors and that Wife’s lack of specificity on this issue was dismissed as waived.

On the $4.4 million dissipation issue, Wife presented a list of purchases and expenditures which she considered a dissipation as the month was spent for the benefit of an adulterous relationship.  As noted, the Court found that its role is not recoupment of dissipated assets but distribution of what remained.  It was sufficient that the Trial Court “considered” monies used by husband during the course of the marriage.  Hopefully this meant the monies “misused” during the marriage but that is not the word employed.

Another issue was that of whether alimony was appropriate.  The Trial Court had denied it stating that the expenses presented were not reasonable and, even if credited, did not exceed Wife’s income supplemented by the equitable distribution award.  The Superior Court, quoting Teodorski v. Teodorski noted that, “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage as well as the Payor’s ability to pay.  Moreover, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of appropriate employable skill.”

The alimony language is interesting to see in a day when alimony appears to be more guideline than needs driven.  The language about the merit of preparing and presenting a dissipation case must be disheartening to many.  It appears that while there was a lot of “evidence” presented about dissipation, the Trial Court skated by stating that it heard and considered that evidence but had no responsibility to keep score or formally evaluate the dissipation claim in an economic sense.  Those who come to attorneys with stacks of evidence of funds spent on non-marital relationships will need to be warned that such a presentation will be certain in cost but not in outcome.  We don’t know how much of the $4.4 million in dissipation claims were solidly established.  What we do know is that in a 25 year marriage where the parties depart with husband having a 3:2 advantage in net income, the equitable distribution advantage to wife was roughly $350,000.

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New York’s highest court, the Court of Appeals ruled on February 13, 2018 that a Facebook account holder’s designation of a posting as “private” did not preclude a litigant from obtaining copies of those postings where they may be relevant to the litigation.

The ruling comes from a personal injury case where the plaintiff claimed to suffer permanent injury in an equine fall.  The plaintiff’s claims included those typically associated with loss of enjoyment of life. The defendant sought to secure plaintiff’s entire Facebook account. Plaintiff opposed production of any private posting and the intermediate appellate court agreed that privacy protection was available.  Further, appellate review was allowed.

The Court of Appeals reversed the Appellate Division, noting that its ruling would allow a party to effectively “hide” otherwise discover-able material simply by marking it as private or otherwise curating their own social media postings. It permitted the Defendant to review post accident postings in search of evidence to rebut Plaintiff’s claim to have suffered cognitive injuries and loss of life’s enjoyment caused by the accident.

The ruling was not open ended however. The trial court had ordered all pre and post accident photos to be produced without regard to privacy settings except those involving nudity or romantic encounters. It also ordered Facebook to produce records of the frequency and length of the postings so that pre and post accident activity could be compared.  The Court of Appeals upheld those limitations but added that a request for these kinds of materials needs to be reasonably calculated to yield relevant information.

Needless to say, in the world of divorce, the scope of relevancy will be considerably broader than that associated with a claim for physical injuries. But, the ruling is an important one.

Forman v. Henkin  http://caselaw.findlaw.com/ny-court-of-appeals/1889175.html

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This is not a political outlet.  So, I will confine my “political” comment to a single set of facts.  17 people killed yesterday. 32 school days so far this year.  Time Magazine reports 18 school shootings.  So a school shooting every other day.

The interviews I heard last night on television provided a haunting reminder of a conversation I had earlier that day with a colleague who treats families going through divorce.  We spoke about a common case.  The child we were discussing was enduring an acrimonious divorce.  The child is caught in the middle and is traumatized by the experience.  The therapist related to me that part of his concern was that the child we were discussing seemed to have no friends; no social connection of any substance.  The kid is in a lot of pain and his parents are so absorbed by their own suffering, they have little empathy to give.  So, the child spends hours of time alone in his home immersed in social media.

Last night I listened to coverage of the 19 year old shooter.  I heard interviews with his classmates.  The child was a loner with no identifiable friends despite efforts on his part to connect with peers directly and via social media.  Children in the high school who knew the shooter before he was expelled described him as strange and his efforts to connect with his fellow students were rejected because he was odd.  So, this child posted some very troubling things online and exercised his right under Florida laws to acquire an AR-15 automatic weapon shortly after attaining 18.  That gun fires more than 700 rounds per minute.

Last year Parkland was named Florida’s safest city.  The mayor described the community as “close knit.”  Like Columbine, Colorado, Sandy Hook, Connecticut and Nickel Mines, Pennsylvania, these are towns where mass shootings are not supposed to happen.  But, let us be plain, we are not a close knit society.  Our kids are more vulnerable to this kind of aberrant conduct than we would like to think.  If you watched the interviews with the affected children, you can tell they don’t even know what they have just lived through.  If anything, they are far too poised for people who have witnessed the death of mentors, classmates and come closer than they can consider, to being among those for whom there will never be another Valentine’s Day.

Eighty nine years ago yesterday, America learned of the brutal murder of seven men in a garage on North Clark Street in Chicago.  The killings became a part of American history.  Three months ago we watched 58 people killed and 851 wounded in Las Vegas.  Cellular phones and computers can make us more connected than we could have ever dreamed possible a generation ago.  But, we are less close knit and more disconnected than ever.  When will we realize that “connectivity” is not just a reality?  It is also a mirage.

President Trump has concluded that the nineteen year old shooter was mentally disturbed.  That should be self evident. But, a child like this lurks in just about every high school in America.  The question is, do we accept school shootings as part of the American way of life or are we going to do something to find these kids and give them help before more children die.

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2017 was a remarkable year in many ways.  In late Spring we watched one of America’s favorite entertainers tried for sexual assault.  In October, prominent producer Harvey Weinstein  was accused of sexual assault by more than a dozen women.  The list of prominent men who have fallen from grace since the Weinstein story broke on October 5 would occupy a blog site of its own.  As this is written, a story has broken that a California legislator and leader of the #MeToo movement has found herself charged with sexual harassment by two people; a former staffer and a lobbyist.

While is it always tempting to write about those who are prominent, most of us who live in relative obscurity view them as “different.”   We like to think that perhaps the victims were complicit or at least indifferent to what occurred.   A common refrain I hear, even from women, is that the victim knew what she was getting into.  Others rally to the side of the victims, plainly asserting that the mere assertion of assault is prima facie evidence that it occurred.  I try to stay away from these stories because where wealth and power enter the equation, reality can become distorted.

That is what made my view of Anderson Cooper’s interview of Jennifer Willoughby so compelling.  Willoughby was not a public figure when she summoned the police to intervene in her domestic life in June, 2010.  She was just the bride of a 32 year old Senate staffer.  On paper, Rob Porter was everything a person would want in a spouse.  Harvard.  Mormon missionary work in London.  Harvard Law.  Rhodes Scholar at Oxford just like his father, the professor at Harvard.  But, in 2010 Ms. Willoughby reports that despite his polished and highly effective work in the United States Senate, their domestic life was overtaken by fear for her physical safety.

I would commend every parent with teenage children to make them watch the CNN interview with Willoughby.  The interview can be found at Daily Beast with reference to Jennifer Willoughby.   https://www.thedailybeast.com/rob-porters-ex-wife-warns-hope-hicks-hell-abuse-you-next  As I began to watch it I did so with some lawyerly skepticism, mainly because the story was old as was the divorce of the couple.  Many divorced couples love to dish on each other while millions watch.  Jerry Springer has made that model work for almost three decades.

But Willoughby was different.  She came straight out and explicitly said she had no agenda and wished her former spouse no harm.  I was still skeptical.  Until, in a very unscripted way, she began to ponder how what occurred arose from her choice of Rob Porter as her spouse.  Unlike many victims, she was not transferring blame to herself.  Not at all.  She was exploring how a relationship that once felt so right had traveled to such a bad place.  In 35 years of practicing law on behalf of victims and perpetrators, if I had a wish for all of them, it would be the self-conferred gift of introspection.  Whether knowingly or not, we have the ability to push the emotional buttons of those whom we profess to love. On July 28 Redbook published 50 phrases that we use everyday that push those anger buttons.  On November 21, 2017 Best Life published 20 Things No Husband Wants to Hear.  Most of these phrases would not be welcomed by any partner.  Any jurist who hears domestic violence cases will tell you that it is common to hear “Your honor, he punched me for no reason.”  Only psychotic people punch other humans “for no reason.”

If there was one area in the Willoughby interview where I think she strayed too far, it was her speculation about the woman her former husband is today dating.  Every relationship is different.  Ms. Willoughby may have incited violence without her even knowing how she did it.  She may have incited violence through conduct that even outsiders would not notice.  This is no justification for any violent conduct on the part of her then husband, but, rather than identify patterns of behavior that cause that domestic violence we rush to label people as “bad” or “good”.  What I found most instructive about the Jennifer Willoughby interview was that she made clear Rob Porter was not a “bad” man; he was a man who had issues with controlling his anger.  Thirty years ago, addiction was equated with moral failure.  We know better today and this writer submits that our views of anger and the violence it causes merit the same evolution in thinking that we have witnessed with substance abuse.  People afflicted with anger management problems do not benefit from ostracism; they require help.

Again, I commend every reader to give Jennifer Willoughby 26 minutes of time by listening to her tell her story.  Of course, there are two sides to every story.  But, no matter what the truth, Ms. Willoughby’s story is one every person can learn from.

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A Superior Court decision last month by Judges Lazarus, Bowes and Ott reminds divorce practitioners that there are distinctions to be drawn between the rights of intestate surviving spouses and the rights of a surviving spouse to elect “against” the will of a decedent.

We start with some old news.  When the divorce code first came into effect in 1980 the rule was that the death of a spouse had the effect of abating any divorce action which had not been concluded by a final decree.  The 2005 Amendments to the law provided that once grounds for divorce had been established, the action could proceed with the decedent’s estate substituted as a party in the action.

Thomas Scarpaci died in 2013 while a divorce action was pending.  Wife had previously filed a Protection from Abuse Claim, but had withdrawn it.  The divorce action had been pending for almost six years when Thomas died intestate.

Widow Patricia filed for letters of administration.  In 2015 she circulated documents at first indicating that the estate would be divided among the decedent’s children and filed an inheritance tax return stating this was how the estate would be divided.  But, several months later her counsel issued a revised distribution statement indicating that she would be taking her share.  This distribution schedule was also not filed. When an audit status was called, the children of the decedent asked to strike the election and deny her the right to claim an intestate share.  After briefing, the Trial Court in Allegheny County sustained both arguments.  Wife appealed.

The Superior Court first looked at the issue of forfeiture of the right to take a share of decedent’s estate under 20 Pa.C.S. 2106.  The court notes that notwithstanding the length of the divorce, grounds had not been established as consents were not filed nor had either party perfected the existence of a two-year (now one-year) separation.  Thus the statute was inapplicable.

The second ground relied upon by the trial court was that the widow’s conduct warranted denial of her right to claim because she was guilty of non-support of her husband under Section 2106(a)(1).  The Superior Court held that the burden to prove non-support was upon the heirs advancing that claim.  The Court further notes that while alive, husband never prosecuted a claim for support and that the argument that wife should have supported him notwithstanding the absence of a claim was insufficient.  The object was made orally in the context of an audit proceeding.

In this case, the court never conducted a hearing or received evidence in any other form.  Curiously, the order deciding forfeiture was reversed without any remand for hearing.  The Court did note that many required pleadings, including an explicit request to declare wife’s interest forfeited, were not filed.

2017 Pa. Super. 393 (12/13/17)   http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Reversed%20%2010335312930622742.pdf

*A NOTE REGARDING OUR BLOG OF 1/3/18: We wrote on Passarelli Trust, a reported decision holding that failure to specifically disclose all assets placed in trust was not sufficient to dismantle the trust on the basis of fraud.  Earlier this month the Court withdrew this holding and ordered the matter argued en banc.

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The September 7 issue of TIME Magazine features our obsession with childhood sports.  The statistics tell the story.  In 2005, school age children played sports at a combined cost of about $8 billion per annum.  Today that number is about $15 billion, almost double. And, during this same period there was no increase in the population of American children.  About 73 million, then and now.  So, how about household income over the same period?  Nominally, it went from an average of $45,000 to $50,000, but if you adjust for inflation, it actually declined a little bit.

This writer’s conclusion?  Americans are spending money they don’t have on something they want and enjoy but do not need.  The cost of team sports for children is itself frightening.  Time reports these as average costs including enrollment, uniforms and lots of travel:

Lacrosse                $8,000

Ice Hockey            $7,000

Baseball/Softball  $4,000

Football                 $2,700

Soccer                    $1,500

Basketball              $1,150

This is not a sport economics blog but we see this every day in our divorce practices.  Parents fight over the logistics of these sport activities. They fight over who will pay.  They fight over whether the child belongs in the sport and, as we recently noted, whether the risk of injury exceeds the benefit.

As the cost of college rises, we also see many parents eyeing their children’s athletic skills as something they can capitalize upon in the form of athletic scholarships.  Putting money in a 529 plan is a tedious way to prepare for college.  But travel with the child’s team to Baltimore or Richmond to watch 72 hours of continuous soccer is now viewed as an “investment.”  Curiously, as time has passed, emphasis is now focusing on athletic performance at younger ages.  Time reports of colleges following “star” athletes at ages as young as 10.  Middle school is now where the talent is first evaluated.  This means, the sport and the child must be nurtured for seven years before the scholarship is awarded.  And, children are seeing repetitive motion injuries crop up more frequently because many of these sports are now scheduled “year round.”  A gifted basketball player cannot afford to risk his future by playing another sport where he could be injured, or worse-yet, his shooting and passing skills are allowed to wither.

In May, I testified before the Pennsylvania House of Representatives about some possible changes in support guidelines.  The witness before me was a Father who, together with his wife, invested heavily in a child’s future as a competitive snowboarder.  Much of this investment was borrowed using husband’s credit cards.  Shortly after it became clear that son’s snowboarding career did not have much promise, wife departed leaving husband with massive credit obligations.  Then she had the temerity to sue him for support.  He wanted relief from the support guidelines because a lot of his income was paying credit card debt associated with promoting their child’s sport.

I must confess, I did not have much sympathy for either parent.  But, as the Time article observes, modern day parents have difficulty saying “no” to their need driven kids.  What child would not want to go to Baltimore, stay in a hotel and hang with his friends while assembled to play back to back softball games on gorgeous college campuses?  Unfortunately, the psychological community is warning that in addition to premature serious sports injuries, many children and their families are starting to experience competitive sports burnout. Especially where scholarships are involved, many competitions and tournaments are mandatory because that’s where the college coaches and scouts are going to be found.  I spoke recently with a fellow lawyer whose child is still reeling from seeing that her son finished both college and his baseball driven career with nowhere to go.  His persona and all of his goals were erected around his athletic talent and now that talent no longer had value.

This is a bad cycle and one that often robs the children of their physical and emotional well-being while robbing their parents’ purse with little chance of return.  Each year about 400-500,000 high school kids play baseball, soccer and basketball.  Another 1.1 million play football.  The likelihood they will take this skill to the professional world is frighteningly small.  Baseball: 1 in 760; Football: 1 in 600; Soccer: 1 in 800; and, basketball: 1 in 1,860.  Sports have much merit. But all good things must come in moderation.

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As this is written, the House and Senate this week are scheduled to vote upon a conference report of both houses of Congress which will “reform” tax law in a major way for the first time since the Reagan administration.  In order to secure passage, Congress needed to find some revenue enhancements to offset the tax reductions allocated to corporate and estate tax payers.

As we predicted in November, alimony as a tax deduction to the payor and an element of income to the payee, appears to be one of the revenue enhancers Congress decided to keep in the final bill, with one twist.  The House version ended alimony as a deduction for any decree or agreement formed after December 31, 2017.  The Senate version of the reform bill did not change the rules relating to alimony.  Thus, we anxiously awaited what would come out of the conference report published on Friday, December 15, 2017.  The 1000 page report can be found at http://docs.house.gov/billsthisweek/20171218/CRPT-115HRPT-466.pdf . Make certain you have your tax code with you when you start to read as the conference report is only a description of the amendments without the Code.

We did this.  In a nutshell, the Conference Committee adopted the House version but delayed implementation for one year.  Therefore, if you are negotiating or litigating a divorce case and you conclude your matter by agreement or decree before December 31, 2018 (a year from now), the old alimony rules apply.  But, beginning with tax year 2019, any new decree or agreement providing for alimony will be tax free to the recipient and nondeductible by the payor.  As Steve Hurvitz, current head of the Pennsylvania Bar Association Family Law Section observed when he read the bill; “There will be a lot of deals made in 2018.”

The effect of this and other changes in the Tax Code “on the ground” in Courthouses across the state is going to be seismic.  The current support guidelines have deductibility “baked into” the formula.  So, Congress is ripping up those rules.  Other adjustments to gross income that are used to calculate net income for purposes of support are similarly affected.  Mortgage interest is capped at $750,000; state and local tax deductions (including real estate taxes) are also capped at $10,000 ($5,000 if filing separate).  Personal exemptions disappear.  Home equity loans are no longer deductible.  All miscellaneous deductions (e.g., accounting tax prep fees) are eliminated.

The standard deduction is now:

Individuals:  $24,000 if married joint

Heads of Household:  $18,000

Single and Married Separate filers:  $12,000

Indexing rates and other tax items (dependency exemption ) for inflation has been repealed.  The child tax credit is elevated to $2,000 per qualifying child and would not phase out until $200,000 for non-joint filers and $400,000 for joint filers.

One thing would seem to be clear.  If you have a visit to Domestic Relations or a court proceeding in support scheduled for early next year, none of the algorithms in the support calculating software are going to provide a reliable result.  Perhaps the largest adjustment relates to income paid through a qualified partnership, “S” corporation or sole proprietorship.  Twenty (20%) of that qualified income is deductible.  The practical effect of what is or is not deductible is going to be the subject of IRS created regulations.

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We have still not seen a copy of the Senate bill although PBS Newshour reports that the final version adopted by the Senate was not circulated in the Senate until late Friday evening and about 5 hours before the vote.  However, it appears that the Senate bill does not change existing alimony rules.  As noted on Listserve last month, the House version does abandon alimony as a deduction effective January 1, 2018.  If you are negotiating an alimony provision you need to be carefully following this issue on behalf of clients.  The one thing which all reports appear to confirm is that tax reform is a freight train that will not be stopped.  The House is scheduled to go out of session on December 14.  The Senate one day later.  The House needs to pass a bill in that time and the Senate and House need to decide on a “common” bill for joint passage and transmission to the President.  The House is circulating a bill that would forestall next week’s government shutdown until December 22, 2017, which would signal that they plan to extend their session.  But, suffice to say, the next ten days should provide plenty of excitement.

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There is a world of information on the internet.  That includes a huge number of websites professing to advise you about divorce.  And among the topics often discussed on these sites is mediation.  Not a week passes without at least one client asking whether they should mediate one or more issues arising from separation and divorce.

Mediation is non-binding negotiation without lawyers.  What could be better?  Get the job done without the expense of the lawyers.  So, it naturally follows that lawyers must be inalterably opposed to mediation.  Right?

When clients ask us about mediating their particular case it does put us in a predicament.  If we advise them to mediate, the inference arises that we add no value to their cause by our representation.  If we advise against it, it appears that our interest in earning a fee has trumped their interest in avoiding unnecessary legal expenses.  So where lays the truth?  A monograph such as this can help because our advise is generic and does not apply to any one case.

In mediation the parties sit down with a neutral person, usually trained to mediate, who listens to each party and attempts to forge common understandings about what is in controversy and how each party’s interest can be accommodated.  It is quite different in approach from litigation, which often takes on a “winner takes all” approach.  Mediators are supposed to remain absolutely neutral through the mediation process.  They are not even supposed to suggest a solution that may appear evident to them because they are then interfering rather than expediting the mediation process.  Where agreement is reached, they usually will confine their roles to creating a memorandum delineating the understanding and ask the parties to have their respective lawyers prepare an agreement to be signed.  There is no question that when a mediator is talented and the parties are motivated to resolve matters, mediation can chop through many controversial issues in quick order.

To be effective, mediation requires three elements.  The first is that both parties are motivated to settle a matter.  Everyone likes to see themselves as motivated to avoid controversy but most of us come to a controversy with the idea that because we are right, we should get what we want.  Mediation has nothing to do with what is right or fair.  It is about compromising matters with an eye towards giving each party the most he or she can get from a negotiation.  But in just about every bilateral (two-way) negotiation, what I get comes at your loss and what you get comes at mine.

The second element required in a mediated negotiation is that each party comes equally well informed.  This is where folks often overestimate their knowledge of their own assets.  If I offer to swap $100,000 in money market assets for an $100,000 IRA, is that an equal division?  The answer is that it is not, but arguments can be made that either one of the assets is more valuable than the other depending upon the facts.  Of course, if I never tell you about an asset or I fail to tell you that a stock option will incur ordinary income tax rates when exercised, I have a decided advantage in the negotiation because I have superior information which I have failed to share.  Bear in mind, the mediator is not supposed to ferret the facts.  The mediator’s role is to moderate discussions directed toward compromise.

The third and final element necessary to mediate is emotional strength.  In divorce related mediation this can often be the fatal flaw.  More often than not, men are trained and temperamentally suited to be negotiators.  Negotiation is a game at which some win and some lose.  Women tend to be motivated to avoid conflict and promote compromise.  This often spells doom in a world where the combatant finds him or herself pitted against a party predisposed to settle.  This rule is by no means fixed in a sexually stereotypical sense.  Again, it is important to note that the mediator does not have the responsibility to level the playing field.

So, having made these observations and noted that there are no hard and fast rules, is there a common sense guideline as to when to mediate and when to avoid it?  Yes, but even these rules come with qualifications.

First, custody issues are probably the most productive area to mediate.  The reasons are several.  The facts are relatively well-known or easily ascertained.  Second, custody arrangements are rarely permanent.  An arrangement negotiated and making sense today could be useless and silly four months from now.  By law, any custody arrangement reached by parents can be discarded by a Court if it later finds that the agreement is not in the child’s interest.  Moreover, one can hope, naively perhaps, that each parent has the child’s interest at heart.

When mediating economic issues such as support and property, it is imperative that you feel that you are equally well-versed as the person you aspire to mediate with.  When dividing simple assets like bank and brokerage accounts the process can be fairly straightforward.  The key is current information and an understanding of how the assets work from a management and tax liability standpoint.  If you are not clear on these points, you could be giving away the store without even recognizing it.  Some issues, such as stock options, retirement plans and closely held businesses can be so complicated that mediation almost never makes sense.

The other factor which should be kept in mind is that in classic mediation, the mediator gives no thought whatsoever to “what a court would do.”  Pennsylvania, New York, New Jersey and Delaware are all equitable distribution states.  This means that assets are usually not divided equally, but based upon an imprecise formula that assays how long you were married, how much you can earn, what you contributed to creating the marital estate and other such issues.  The outcomes vary from case to case and state to state.  You could form what you perceive as a “fair agreement” in mediation to discover that you would have gotten a far different result if you relied upon a court to make the division.

So, should mediation be avoided?  Absolutely not.  But it is worth knowing the benefits and detriments to the process as it relates to your case before going into the process.  Once in mediation, you are not bound by your agreements unless you choose to affirm them outside mediation.  But you don’t want to invest in this intensive process only to find yourself abandoning the agreement you said you intended to make.  The prudent course is to discuss the process, its potential and peril before actually enrolling this exercise.

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