Keeping the Marital Home in Divorce and Pitfalls for the Unwary
by Mary Salisbury
Supporting Effective Agreement
Keeping the marital home in divorce and pitfalls for the unwary.
In most marriages there is a marital home and it’s often the largest, or one of the largest assets. Particularly if there are kids, in divorce, one spouse often wants to keep the marital home.
There are pitfalls for the unwary in divorce as it relates to the marital home that can arise long after the mediation has been completed. As mediators, we can provide the service of advising our clients so they can avoid these pitfalls that could create bitter feelings towards their ex plus end up affecting their financial life for years to come.
I’ve had more than one phone call from folks seeking help because their settlement agreement said the ex-spouse got the house and would refinance but that was not happening. Meanwhile, they were stuck in an apartment, because they were still on the marital home mortgage. Even worse, their credit was taking a hit because the house spouse was not making mortgage payments.
As mediators, we do our clients a service by inquiring about the ability to pay a mortgage, explain these pitfalls to our clients and recommend that the house spouse get a commitment letter from a bank prior to finalizing the settlement agreement.
-The husband is insured and the wife is a beneficiary. (This is often done this way because a spouse has lower credit scores.)
-They get divorced and wife keeps the house. No changes are made to the policy.
-A storm happens and a tree falls resulting in a $6,000 repair.
-Wife goes to file a claim but because she is a beneficiary, the claim is declined or the money is sent to the husband because he still shows as the insured.
Michael Lodge, NCPM, CRTP
Nationally Certified Professional Mediator
This is an excellent article on how to use mediation in other areas of business and life. This is from Mediate online magazine. I have been brought into business and personal issues that have not been disputes, especially in the corporate world and it's constant change. Enjoy the article and think about using mediation in various areas of business and life.
by Jharna Jagtiani, Aanchal Gupta
The mediation process is inherently flexible. Traditionally, it is used as a dispute resolution tool where parties can come together, call a timeout and reach a mutually acceptable solution. But in the time of a pandemic or even otherwise, there are several uses of the mediation process. Different situations and circumstances can bring out several issues that one might face especially when working in a group or dealing with other people in general. Principles or even the process of mediation can help figure out a plan or a strategy for the developments and help tackle any issue faced by the parties.
Here are some instances where mediation can be used other than resolving disputes -
Mediation is a voluntary, non-binding, informal process that helps the concerned parties to come to a table and talk about their concerns or conduct any negotiations that they need to. As effective as mediation is in resolving the disputes by deliberating upon the interests and positions of the parties, but it can also prove to be an effective tool when introducing new changes, strategizing, planning, etc. If we need to align interests of different people who are working together or need to collaborate, then mediation can help them find a common ground from the very start instead of waiting for a conflict and then resolving it. Mediation can also be a fast and economic way to ensure that costly conflicts and/or litigation don’t take place. The conflict does not only cost in terms of resolution but also causes lose in terms of the work and emotional costs are another concern. Mediation process will be able to help create a safe and friendly environment thereby reducing the mental stress that a person might go through in case of a conflict.
Mediation should be used in construction disputes more. There are issues that arise on almost every construction site that leads to a dispute. It can be a change order that was not approved, billing for materials not part of your construction, over charges, construction quality issues, construction schedules and various charges for being late, warranties on the work and the list goes on. Mediation provide both parties mediate and resolve disputes prior to going into a costly legal battle.
Here are some ways to prepare for mediation.
1. The role of the mediator
Mediation is geared to resolving the dispute. One feature is the chance to hold confidential discussions with the mediator. The opportunity to discuss issues with the mediator in private can often be a more appealing way of getting a point of view across rather than being constrained by what has been prepared.
Once the mediator has a grasp of what is driving the dispute then he or she can get to work. Mediators are independent and neutral. They will use their knowledge and experience of the law and construction to rigorously test what each party is saying and help parties decide on what terms a case might be settled.
Preparation is therefore geared to helping the mediator to help the parties with identifying the point at which one or more of the parties have a reason to settle: the point at which the benefits of reaching a settlement outweigh the alternatives.
Mediation is not adversarial in nature, unlike adjudication or court proceedings. Parties to a dispute can mediate their differences without legal representation. That said, legal representatives can and do serve a useful role in assisting the mediator, identifying the issues and advising their clients on settlement as well as the consequences of the alternatives. If you have a grasp of the facts and feel you can mediate on your own, mediation allows you that opportunity.
3. Know the case
Knowing the facts is key to your opening statement to the mediator at the time of the mediation session. If you have all of the facts ready ahead of time it will provide the other side a clearer understanding of your dispute. Prepare a “punch list” of items that need to be discussed, the costs associated with them. If you have contracts provide that to the mediator so he has a better understanding on the relationship with the you and the other parties.
Clarification of issues and disclosure of documents before mediation meetings is an important part of the process. Mediation meetings can then be used to test issues once the parties have shared relevant information and settlement options explored.
4. Be prepared to negotiate
A dispute is seldom settled by trying to persuade the mediator that your case – and your bottom line – is the right outcome, but because one or more of the parties does not have a better alternative. This inevitably means you need to identify the point at which you will walk away from the mediation without a settlement. If that is less than the other party’s bottom line – what they are prepared to settle for – then the dispute will obviously be settled.
5. Be prepared to make hard decisions
An experienced mediator will test you as well as your case. Be prepared to listen to criticism. Consider that the mediator may try to help you rationalize your own case as well as giving a clue about the other side’s bottom line without breaching confidentiality. Parties often push back against hard questions from the mediator. Rather than push back, take the opportunity to reassess your own prospects of success.
6. Aim for settlement
As noted above, settlement rates are high. This reflects the fact that management of risk in dispute resolution is hard to achieve in more adversarial processes. The benefits of mediation are many and being familiar with how to prepare for mediation might just persuade you to consider mediation not as an alternative but as the norm.
Communication is the source of focused determination to make things work. If you have no communication, you have nothing to resolve issues with. In every separation or parenting mediation that I do, it is seldom to see civil communication between individuals. Some individuals say nothing, and others say way too much that sets off an even greater fire. The process of mediation is to help those to develop rules of engagement, ways to communicate so that civility outweighs the anger of emotionally charged individuals. Not everything needs a book of information and arguments, not everything needs a response. Use the 25 words or less rule and you will think before you speak, and you can control your tone. The way we communicate creates conflict. I know, I have heard and read it when in mediation.
There are characteristics of conflict that include the following:
Incomplete communication - one of the parties to the conflict did not hear the whole story, or didn't read the whole story as written.
Inaccurate information - one of the parties to the conflict had the wrong information or intentionally sent the wrong information.
Stress Overload - one of the parties to the dispute was confused, overloaded, or stressed.
Different viewpoints - the parties to the dispute see things differently; the parties may have different beliefs or values.
Limited resources - Neither party can have it all because there is not enough to go around.
Now communication can be resolved. Sometimes it means going into family counseling to learn how to communicate, especially for those where their communication is doing damage to the children. Communication and the words used creates a tension and stress in children, you may not see it because you are so focused on winning an argument. Or your just too stubborn to look at the damage you are doing. You want to be right; you think your way is the right way. Instead of looking at other options, such as counseling, you choose to go in your own direction not realizing that your actions are creating a greater damage. These types of people are very dangerous to the children in the family because they come second. Children should always be the priority even if it means you giving something up.
When communicating with the other party, do not over complicate it. Simplify and be clear on what you need to know. Say exactly what you need to know, do not add so much to it. Be simple and clear. Remember, we are practicing the 25 word or less rule. Keep it simple with the question or request and those responding - provide the information back with the 25 word or less rule. Questions and requests do not need to be books.
The other issue is that facts rule. When having a discussion stick to the facts of the issue, do not go back into the past and start bringing that up again. As a mediator I do not need to know the history, I want to focus on the issue at hand and how we can resolve them. And, drum roll, so should you. Keep to the facts of the current issue. You cannot change history no matter how many times you tell the story. Going back creates anger alive. Too many words make a mess, less words keep you focused on results. Easy?
When you are writing an email or text, or if you are using an app to communicate with, design a template for yourself to use. Use it every time you communicate. Let's look at an example:
TEXT OR COMMUNICATION TEXTS OR APPS (25 words or less rule)
Text or Email: Can you give me a dates of when you need Bobby watched?
Receiver Response: June 22 - 25.
Sender: Ok, I confirm those date, Bobby will be at my home on those dates.
SERIOUS ISSUES VIA EMAIL__________________________________
Date: Feb 16, 2021
Goal of Email: To learn more about the behavior issue at school and what needs to be done.
Issue: I am concerned that Jack was punished at school for his behavior in the classroom with the teacher. It is so very important that we address this issue together. I understand that you responded to the school.
Follow Up Requested: Please let me know what happened at school. Also please agree to keep me in the loop in the future. Through our communication app is fine.
I have reviewed the above before sending and have made every earnest effort to remove anything that could be considered a naked or veiled insult or unnecessary commentary.
Disclaimer: No offense or insult was intended, either overtly, covertly, consciously or unconsciously, by any of the above.
The shorter the communication the better, the more defined communication on important issues, and the tension will be less. The more you read the angrier you become. Write short messages, get to the point, and move on. It should take just a few moments of your time. If it is taking long, then you did not follow the 25 words or less rule and decided to go with a book that no one wants to read. Short and to the point gets to result and you can move on with your day.
Got it? Do it! If you need help on mediation communication conflict, let me know. Separation, divorce, parenting plans, all work only with good communication. 25 words or less rule.
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Michael Lodge is a Nationally Certified Professional Mediator specializing in business disputes, as well as family conflicts. He has written three books and hosts an international podcast on IHeartRadio and other podcast media stations.