“We are doing it my way – or not at all!”  Many married couples develop decision-making patterns over time, and sometimes the pattern is lop-sided.  In some cases, one person is more controlling or in-charge, and the other is generally accommodating, easy-going.  This dynamic may work alright while the going is good.  But, if the marriage breaks down, the problems in this type of uneven dynamic become clear.  And if the couple later decides to divorce, can they ever reach a fair result?  And will it be possible for them to use divorce mediation rather than litigating their differences in court? 

Luckily the answer to both questions is “ Yes!”.

Divorce mediation relies on a third-party impartial mediator to help parties come to a fair and equitable agreement on issues of spousal and child support, parenting, and the division of assets and liabilities.  The neutral mediator guides the process, allowing the individuals to craft an agreement that works well for them and their family. 

Usually, a well-trained mediator can tell early on how the parties interact with each other, and can take steps to ensure that everybody’s interests are met.  The divorce decision-making process is too important to allow for brow-beating, or bullying by one party.  A good divorce mediator recognizes that the goal is not just agreement, but an EQUITABLE agreement, and that such a result is possible only if everyone has a role in setting the terms.

-Randi M. Albert, JD

When a couple is getting divorced, they sometimes change their thinking from “what’s mine is yours” to “what’s mine is mine!”  During this process, a common misperception is that if an asset (pension, 401K, car, etc.) is in only one person’s name, then it is not considered a marital asset and actually belongs only to the title holder and will not be up for grabs during a divorce.   Surprise!!!  For the purposes of divorce, the name on the title does not matter.  Everything you and your spouse accumulate during the marriage is marital property and on the table for discussion for equitable distribution.  

Of course, there are some specific circumstances in which an asset that was acquired during the marriage still may not be considered a marital asset and truly, entirely belongs to just one of the parties.  These assets would not be eligible for equitable distribution.  For example, an inheritance received by one party that was never comingled with marital monies or a settlement from an accident for your pain and suffering that was kept in a separate account. 

Generally, however, since New Jersey is an equitable distribution state- assets are divided fairly, but not every asset has to be divided 50-50.  It is possible for one party to get 100% of one asset and 0% of another.  New Jersey law directs the Court to consider fifteen factors in determining what is an equitable, fair and just division of assets. They are:

- The length of the marriage
- The age and health (mental and physical) of the parties
- The income or property brought to the marriage by each party
- The standard of living established during the marriage
- Any written agreement made by the parties before or during the marriage regarding a property settlement  agreement
- The economic circumstances of each party at the time of the division of property
- The income and earning capacity of each party
- The contribution by each party to the education, training or earning power of the other
- The contribution of each party to the acquisition, preservation, appreciation or depreciation of the marital property, as well as the contribution of one party as a homemaker
- The tax consequences of the proposed distribution to each party
- The present value of the property
- The need of a parent who has physical custody of a child to own or occupy the marital residence
- The debts and liabilities of the parties
- The need for a trust fund to cover expenses for reasonably foreseeable medical or educational costs for a spouse or children
- Any other factors which the court may deem relevant 

So, in most cases, all assets acquired during the marriage are owned by both parties, and the plan for dividing them can be complicated.  To make this process easier, couples often rely on a professional divorce mediator to help them with the task.  Using a trained impartial mediator helps couples divide assets fairly without getting stuck on emotional feelings about who deserves more.  

Just because your kids have turned 18, or graduated college, or even moved out, doesn’t necessarily mean that they are independent adults who can support themselves emotionally or financially.  As everyone knows, age doesn’t always equal maturity, and sometimes kids take a long time to become grown-ups.  So how does this impact on you if you are getting divorced?  How do you factor the financial needs of your adult children into your plans with your ex?

In New Jersey, parents are generally financially responsible for their children until they graduate from college.  But what if your kids continue their schooling and/or cannot find a job after college?  Or what if college is not in their immediate plans?  While the parents may not have a legal obligation to their adult children, they often have an emotional one.  In certain cases, they may want to set up a trust or an account to which both parents contribute for the child’s financial support.  In other cases, parents agree to pay for some of their children’s expenses, like rent, and ask the children to contribute their own income to pay for the rest.  In addition, under the new health care law, parents can cover their children on their own health insurance plans until they are twenty-six years old.  Therefore, the parents may need to craft an agreement for sharing these costs as well.

At Westfield Mediation, LLC, we work with divorcing couples of all ages to reach a fair and equitable agreement on parenting and financial issues.  We are sensitive to the needs of parents with adult children, and we help them create a framework that works for their family’s particular needs.  Because mediation allows couples to work together on their post-divorce arrangements, the parties are more likely to devise a solution that makes sense for them, and thus, they are more likely to follow the agreement.  Even for divorced parents, being a parent is a life-long job.  Divorce mediation makes it that much easier.

- Randi M. Albert, JD