The New York state assembly has passed a bill authorizing no-fault divorce in New York. Governor David Patterson signed the bill on August 15; it goes into effect on October 12, 2010.

The provision is an amendment to Domestic Relations Law (DRL) Section 170, and states that, as one of the grounds for divorce in the State of New York, a new ground for divorce shall be that:

(7) The relationship  between  husband  and  wife  has  broken  down irretrievably  for  a  period  of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution  of  marital  property,  the  payment  or waiver of spousal  support, the payment of  child  support,  the  payment  of  counsel  and experts’  fees  and  expenses as well as the custody and visitation with the infant children of the marriage have been resolved by  the  parties, or  determined  by  the  court  and  incorporated  into  the judgment of  divorce.

What this provision means is that you will no longer have to accuse your spouse of refusing to engage in sexual relations, or neither admit nor deny that accusation if it is made against you. Fault is no longer an issue. In the real world of New York divorce the grounds for divorce were rarely an issue anyway. This simply takes the issue off the table. It was one of the few bargaining chips that a reluctant-to-divorce spouse had to seek a more generous financial settlement; that is now gone. If either of you wants out, you are getting divorced.

However, the Court cannot grant a divorce until all other issues, including custody and support of children, support of a spouse, distribution of all assets, and so forth, have all been settled. So, the real issues are still there.

Now that grounds are no longer an issue, there is no reason whatsoever to engage in litigation. All the outstanding issues can be much more easily settled, and at a fraction of the cost, through mediation.

Obviously, the husband could have been presenting a partial picture; I told him that his initial failure to provide financial disclosure to his wife’s attorney had probably cost him some creditability.

The following week the husband turned  up for our next appointment. We waited half an hour for the wife; he tried calling her — no answer. He also told me that she had had a fight with him the previous weekend — she would not let him see his children after they had a fight over finances.

The husband left to hire an attorney — and off they go down the litigation tunnel.

The husband had started out with an arrogant, I know best, attitude that simply confirmed for the wife that she could not trust him. That was compounded by the revelations that they were not only not rich, but broke. The wife did not have the personal knowledge or resources to evaluate the truth of what her husband was telling her, so she made an entirely rational decision to rely on her attorney.

I happen to know the wife’s attorney professionally — a tough, no-holds-barred litigator who sees her job as getting the most for her client through litigation. She is not someone likely to settle.

The fact is that the husband’s presentation of his finances is probably substantially true. The parties will now spend tens of thousands of dollars establishing that. The will spend a couple of years, $50,000 or more, and cause themselves and their children no end of grief — for what? It will come out the same regardless. They could have made a deal if they had each been more forthcoming and realistic at the beginning.

You have control over your own divorce. If you hand it over to the lawyers you only have yourself to blame for the disaster than ensues.

A couple came in to see me two weeks ago, hoping to avoid a disastrous litigated divorce. The wife already had an attorney; the husband is a lawyer — not a matrimonial lawyer — who was hoping to avoid two or three years of expensive and destructive litigation.

At our first meeting the husband dominated the discussion. I made sure that the wife had a say, and I asked her frequently whether she understood the various topics. She said that she did, but that she just wanted to listen.

The wife’s point was that the husband was a very successful attorney, had made millions, and that she was willing to divorce, so long as nothing substantial in her life changed. She did not want to stay in the marital residence, but wanted her husband to buy her another house where she and their five children (three of whom were over 21) could life. She also believed that the husband had a business worth millions, apart from his law practice.

I discovered during this session that they were already in court, that the wife was represented by counsel, and that they had already appeared at the initial, preliminary, conference.

I asked the husband whether he had filed his net worth statement yet — the court-required sworn  statement of assets and liabilities, expenses and income. He said that he had not.

I asked the wife what she knew about their finances; she told me me that she knew nothing except that her husband was rich and successful.

I told the husband that he needed to prepare a net worth statement immediately; it was required by the Court and there was no way we could proceed in mediation without a financial statement. He agreed to do so.

Our second meeting was a week later. The husband brought a large stack of financial information and we proceeded to review it. It quickly became apparent that, assuming his documents were both substantially correct and substantially complete, he was deeply in debt — to the turn of millions of dollars. It was also clear that he was borrowing just to support current expenses.

The three of us went over the documents. It was not at all clear whether the wife accepted the facts as presented by the husband or not. She clearly did understand what was being said.

It became increasingly clear that the future she wanted was not remotely possible on the financial facts that we presented. What to do?

The husband proposed that the current situation continue until he could work out a solution to his financial problems, which he believed he could do with some time. The wife wasn’t buying it.

At the end of the ninety minute session I suggested that they might want to continue the discussions at home; they both thought that would not be a good idea, and insisted on another session with me the following week. We made an appointment.

To Be continued . . .

In the middle of last year a couple came to see me to mediate their divorce. They were amicable, it appeared, at least at the beginning. The husband was an attorney who had been  very successful, then had some health problems, and was having financial problems. The Wife had managed to spend just a little more than what he made, year after year, no matter what he had made, and traded up to a house they could not afford.

Once his health failed they rapidly fell into financial crisis. That precipitated the divorce. In the initial meetings they were quite friendly; the wife simply wanted nothing in her life to change and the husband, who had always been very accomodating, was willing to give her whatever she wanted.

However, as we went through the numbers it became quite clear that they could not sustain the life they had been living while living together; once they separated it was doubly impossible. The wife was going to have to go to work; the husband was going to have to recognize that he simply could not keep his wife and kids in the expensive house with all the trappings of the successful upper middle class professional life style.

That is where it started to get ugly.

They managed to come to an agreement, at least on paper, and I prepared a draft agreement for them to take to their attorneys.

A few weeks later I got a call from the wife’s attorney, someone I know quite well, asking me to send her a digital copy of the agreement so that she could edit it.

In the meantime the husband decided to seek counseling.

I ran into him a couple of times, since he lives near my offices. Apparently the wife was unhappy with the deal they had made, her attorney had completely rewritten the agreement, and they were now on the verge of litigation. The wife simply was unwilling to accept the financial realities.

I suggested to him that they both come in for another mediation session, but he told me that he had already suggested that and her attorney had vetoed the idea.

More time passed. Eventually I discovered that they were about to sign the stipulation of settlement and settle the divorce. The terms were identical with those we had worked out in mediation. There was, however, one additional term: he had to pay $10,000 to his wife’s attorney for legal fees.

An additional six to nine months; an additional $10,000, and the deal they finally struck was the same as the one they had made through me. Why? Because the facts are what they are. Not liking them does not change them. An attorney may promise to get you whatever you want, but it just doesn’t work that way. Most divorces fall into one of several facts patterns, sets of facts that occur over and over again, and the realistic solutions are both well know and limited in number.

I would not say that they attorney did something wrong by taking an advocacy position; that is what many divorce attornesy think they are supposed to do. But, in the end, how did it serve the client? The facts were what they were and she ended up with the same deal. She simply took another $10,000 out of the money that the parties had to support themselves and their childeren.

What is the point? It is important to be realistic. You can only hurt yourself by indulging in fantasy.

One of You Can Move Out for A While: The problem is that all your friends are telling you — “Don’t Move Out.”  The lawyer you went to for a free consultation says, “Don’t Move Out.” You can’t stand the tension — why won’t your spouse just leave? The fact is they are all right — if you move out you will lose all your leverage in bargaining. If you move out and leave the children with your spouse in the house — good-by custody.  If you move out of the house and leave your spouse and children in it you could easily end up supporting them there for years until the children are grown. So moving out to reduce the tension is simply creating another whole set of problems.

Get a Separation Agreement: Often a potential client will call me about “getting a separation.” They are often surprised to find out that they will have to tell their spouse and have the spouse come in and participate in negotiations. You don’t just “get a separation.” It takes two people. The problem is that, in order to negotiate a separation agreement you really need to deal with all the issues, not just whatever is most pressing.

The Reality: The reality is that there is simply no simple answer to the question of whether you should get a divorce or not. Nor is there some simple, temporary solution that avoids the tough questions.

You really need to ask yourself, “If this marriage worth saving and, if it is, is it realistic to save it?” Is each of you willing to make the changes that you need to make to succeed as a couple? It takes two to tango. If not, then you need to face the reality of moving on into separate households, with all the arrangements concerning children and money that need to be made.

This is the question that constantly runs through your mind when your marriage has become completely intolerable and you don’t know what to do.

You can ask your friends, ask your therapist, ask a lawyer or two, but none of them can really answer the question for you. That is because the answer can only come out of your experience. How do you use your experience to answer that question?

What is essential, and what is missing in how most people think this issue out, is a process that allows you to access both your feelings and the objective facts.

The first question to answer is not, do I get divorced or not, but, what are my realistic options? They really boil down to these: 1. don’t do anything, 2. go to counseling, 3. do something that alleviates the  pain for now but is not a permanent solution, 4. live separately and see how it goes, 5. get divorced.

How do you choose among those choices? Looking at the facts realistically (Perish the thought) is the first step.

Do Nothing:Sound good, but is that really going to work? The situation has becom intolerable or you wouldn’t be reading this blog. Burying your head in the sand will just leave things to fester until some sort of explosion occurs. Better to take charge then let things just happen to you.

Go To Counseling: A good marriage counselor can work wonders, but there are limits. Unless you both want the marriage to work more than you want to be right counseling is going to go nowhere. If your expectation is that the counselor will tell you spouse all that is wrong with him/her and all that he/she has to change, while you sit with a self-satisfied look on your fact, you are going to be disappointed. It is a rare marriage in trouble where it is totally the fault of one spouse. You will both need to work on yourselves individually and together as a couple if marriage counseling is going to work. You can find out more about marriage counseling here.

Do Something Temporary: Maybe one of you will move into another bedroom; maybe one of your will move downstairs. The problem is that doesn’t really address the real issues, whatever those issues might be. If it is money issues, living separately in the just puts more distance between you in terms of decision-making. If the issue is intolerable behavior, you are still going to be tripping over each other all day long.

If you have children, the fact that you are sleeping apart, or even living apart within the home, is very clear to the children and makes them fearful and incomfortable. The level of uncertaintly in their lives increases and the emotional pressure on them goes up. The children are extremely sensitive to the breakup of a marriage. If Mom or Dad is suddenly living in the basement, fears of divorce, dislocation, separation from their parents, come to the fore. What an in-house separation does is raise the fear level astronomically for the children — it doesn’t make it better — it makes it worse.

To be continued in next post.

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A potential client (let’s call her Mary) came to me late last week with the following problem: her friends are all telling her to go for the jugular, hire the shark with the sharpest teeth, and rip her husband apart and take everything he has. Her therapist is telling her to get out of the abusive relationship whatever it costs, even at the cost of walking away from everything but the kids. Her priest is telling her that all marriages have problems and that she and her husband need to work on their marriage more and recommit to its success. Her mother hated the guy from the day she first laid eyes on him and her father says, stay together for the children — divorce is always wrong. She cannot live with the man any longer but doesn’t want the children to lose their father.

What to do?

The problem is that Mary is listening to all this advice from outside herself; even the best meaning advisors cannot know your heart. If you don’t know your own heart how can you decide what is best for you? This is not some sort of new-age “follow your bliss” sort of thing. If you cannot know what you truly need to do then how can you make this sort of life-changing decision?

Each of Mary’s advisors is trying to help her; each believes he or she is seeking Mary’s best interests, but the advice of each is colored by that person’s biases and own interests. What Mary needs is someone who is knowledgeable about divorce, the realities of the Courts, and can help her to discover what she believes is really in her best interests.

That is what our divorce consulting and coaching services provide: an unbiased analysis and step-by-step decision-making process based on the real facts of the marriage, the realities of the Court System, and a discovery process with Mary herself by which she can discover what makes the most real sense for her.

It is crazy to jump into the maelstrom of divorce without having first discovered within yourself what results are realistic and most satisfy your long term needs — material, familial, financial, and otherwise.

When you are first trying to decide whether divorce is the best alternative facing you, who do you go to ask? Your friends all have their opinions, but they either have no idea what they are talking about or are trying to re-litigate their own divorces through you. They are excellent for emotional support and as a cheering section, but they really cannot give you useful objective advice.

Your therapist can help you understand what you need for your own emotional well-being, but few therapists are trained or experienced in the nuts and bolts of the financial and real-world implications of divorce.

You can go get a free consult with any number of divorce attorneys. They are experienced in the Courts and knowledgeable in the law, but even the most honest of them is unable to offer completely unbiased advice. Why? First, the job of an attorney is to be your advocate. Any attorney is going to paint as rosy a picture as he or she can of the positive outcome you can expect. That is not necessarily dishonest; it is the reality of advocacy.  Second, any attorney naturally sees the free consultation as a selling opportunity — that is what it is for. They are all in business and business is about making money. They are certainly hoping you will hire them. So, honest and knowledgeable objective analysis and advice is hard to come by.

We offer a different service. We can sit down with you, gather the facts about the marriage, what you hope to accomplish at the end, and offer you an unbiased assessment of the chances of your achieving what you want, what the realistic outcomes are, and what is likely involved in getting there in time and money. For a relatively modest sum you can be equipped to evaluate your case and what various attorneys have tried to sell you. You are then able to make informed decisions about how to proceed.

We can also coach you through the process. Again, at critical moments in the divorce process you have to make major decisions. Your friends can support you, your therapist can help you to remain on an even keel, and your attorney can advise you, but how to make the decision — you need knowledgeable independent help for that. We can coach you through each of those decision-making events. Again, we have no interest in the outcome and so can offer objective advice in helping you to make a decision.

I do not practice law any longer, but my over two decades of experience, including many trials before the divorce and family court judges of Long Island, my training in NLP and in Extraordinary Self Coaching, enable me to guide you through the decision-making process so that you come to a decision that comes out of your own needs, not those of your friends or your attorney.

How Do You Know the ‘Rubber Band’ Has Not Snapped In Your Marriage and There is Still a Chance to Make It Work?

What if you are not clear about dissolving your marriage? Perhaps one of you still thinks that the ‘rubber band’ is not yet broken. One of you wants to give it another try – or maybe both.

When you still have some hope that the relationship can be repaired, or a question about that, then it pays to call in a Marriage Counselor as your next step before dissolving your relationship and going through the divorce process.

What should you expect from your Marriage Counselor? You should expect that your Marriage Counselor will:

• Have many years of experience. Research shows that the more experience of the Marriage Counselor, the better the outcome.
• Treat you both equally without being seduced by one side or another. 
• Realistically help you assess whether or not your marriage is saveable. It is difficult to rebuild a marriage, yet possible, if both sides are willing to work on their part in the marriage.
• Can get both of you to really listen to each other.
• Not allow the two of you to repeat over and over dysfunctional or painful patterns of anger and not listening, once the patterns have been acknowledged by the counselor.
• Hear your feelings.
• Teach you how to change so that your marriage works.

I would be happy to recommend a Marriage Counselor for you who fits the above criteria before you take that final step of divorce. Just give me a call at 631-757-1553 or send me an email with the form to the right.