How Mediation Can Help – Even When Divorce Litigation Is Pending

June 10, 2014

Divorce-MediaitonIf you are engaged in divorce, you may be battling your case in the traditional attorney-run court system. If this is your situation, but you yearn for a more civilized, less expensive method of settling your divorce matters, you can consider Mediation at any time in the process.

I see clients and settle cases at all stages of the separation and divorce process. For example:

  • Mediation works well in cases where attorneys are never involved;
  • Mediation works well in cases where attorneys are consulted prior to the mediation, but are not involved in the mediation process;
  • Mediation works well when attorney services are utilized only for review of the draft Settlement Agreement; and
  • Mediation works well when clients are deeply involved in litigation, but want to come up for air and try and settle their case in a more orderly, less contentious fashion.

Most clients don’t know that Virginia attorneys are required to advise their clients that there are alternative methods to resolve their disputes outside of litigation. (This mandate is pursuant to the Comment Section of Virginia Supreme Court Rule 1.2.) If your divorce attorney has not advised of you that there are Virginia Supreme Court Mediators ready to assist you with your divorce settlement needs, ask him or her if there is any reason why Mediation, or any other form of Alternative Dispute Resolution (ADR), is not appropriate for your circumstances.

Certain situations merit consideration of “taking a break” from litigation. You may wish to consider Mediation if:

  • Litigation is doing harm to your children.
  • Litigation is causing emotional turmoil and an inability to focus.
  • There is a need to feel that all “friendly” avenues were tried before either of you “pull the trigger” in court (and unleash a torrent of bad feelings that may last a lifetime);
  • You think if would be a good idea to treat the property and debt issues completely separate from the child-related issues.
  • You and your attorney no longer see eye to eye;
  • There is one single issue that is holding up the entire settlement;
  • Your attorney fees feel like the National Debt.

If you think Mediation is the way to go, give Robin Graine, JD, at Graine Mediation, a call: 571-220-1998. If you just want to learn more about Mediation, or if you want to discuss whether Mediation is right for your case, give Graine Mediation a call. Robin would be happy to answer you questions: 571-220-1998.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Mine, Yours, and Ours in a Virginia Divorce

May 6, 2014

How Do Virginia Courts & Mediators View Equitable Distribution When a Husband and Wife Commingle Separate (Non-Marital) and Marital Property?

In Virginia divorce law, there is a lot of confusion when it comes to the division and distribution of property[1] when the divorcing couple does not agree on whether that property is “marital property”, “separate property” or a combination thereof (known as “hybrid property”). This confusion is unfortunate because how property is classified is extremely important in terms of what is on and what is off limits to Virginia judges when they make their “taketh and giveth” decisions. In a Virginia divorce, courts may only order the division, distribution and sale of jointly owned marital property.

The perplexing, often counterintuitive state of the law in Virginia, when it comes to classifying property as “marital” (subject to judicial division, distribution and sale) or “separate” (off limits to judicial orders) is the cause of intense litigation and outrageous attorney fees – which is never good for families.

Some of the biggest court battles, in a Virginia divorce, occur when property has characteristics of both marital and separate property – known as “hybrid property”. With hybrid property, Virginia judges are only permitted to order the division, distribution and sale of that portion of the hybrid property that is classified as marital. The problem is that not all reasonable people agree on how and where that split between the two classifications should take place. In litigation, the final decision, after presentation of the evidence, lies with the judge. In comparison, clients who mediate make those decisions themselves after the mediator has informed them of the law, legal culture and trends in their area.

In this article, I have broken down the Virginia statutory law in this area, which is found in §107.3 of the Code of Virginia. This is the basic law and, though it does not get into some of the complexities and nuances that attorneys sometimes wrangle with in the form of “case law”, §107.3 is robust in its coverage of this area of the law. For a more comprehensive view of how hybrid Real Estate matters are handled, though, see my blog article “The Wild West of Divorce Law as Concerns Real Estate in Virginia”.

In a mediated, versus litigated, divorce settlement, divorcing couples have the option of applying or not applying the legal definitions of and methods of classifying property. A good Virginia divorce mediator will be able to inform you of what the law is, and how it is usually applied in court, but it is ultimately up to the divorcing couple to decide whether or not to apply §107.3 to the various issues in their case.

What guides couples in mediation, in addition to the law, when it comes to classifying property as marital, separate or some of each (“hybrid property”), depends on several factors which include, but are not limited to:

  • the parties’ sense of personal justice and fairness;
  • the parties’ history of financial management, discussion and planning;
  • the parties’ goals both before the decision to divorce and post-divorce;
  • the needs of the children; and
  • the needs and fears of both spouses.

 In mediation, parties make their own decisions about what is “good and right and proper” with regard to the classification, division and distribution of property in a divorce situation – even if their decisions are not in line with what a judge could do. Often times, mediation clients make much better decisions for their unique circumstances than a judge could ever do.

             The material in this article may seem overwhelming and . . . it is! According to many of my clients, the law in this area is not only confusing (until I explain it to them J), but often counterintuitive. Hopefully, after reading my breakdown of Virginia Law in this arena, you will not find it too confusing – but I almost guarantee that some readers will still find it counterintuitive, unfair, ridiculous and/or in need of a revamp. Nonetheless, this is the law.



A: Per §20-107.3(A)(1) of the Virginia Code, SEPARATE PROPERTY is that property which was:

  • Acquired BEFORE the marriage;
  • Acquired by INHERITENCE;
  • Acquired by GIFT (to only 1 spouse, not to the couple; not a gift from one spouse to the other);
  • Acquired as a result of an EXCHANGE FOR or from the PROCEEDS of a SALE of Separate Property

Also, in order for that separate property to maintain its classification as separate property, it must be maintained separately (i.e. not “commingled”).


A: Per §20-107.3(A)(2) of the Virginia Code, MARITAL PROPERTYis that property which was acquired by each party during the marriage (and which is not separate property as described in §20-107.3(A)(1)).


A #1: It is PRESUMED that all property (including retirement benefits) acquired by either spouse DURING THE MARRIAGE AND BEFORE THE LAST SEPARATION of the parties (with the intention, by at least one of the parties, that the separation be permanent) is MARITAL PROPERTY . . . unless there is “SATISFACTORY EVIDENCE” (the code’s phrase), pursuant to §20-107.3(A)(2), that it is separate property.

A #2: It is PRESUMED that all marital property is JOINTLY OWNED unless there is a deed, title, or other clear indicia that it is not jointly owned.

Q: Is Jointly Owned Property Presumed to be Marital Property?

A: NO! Per §20-107.3(A)(3)(f), when property is retitled in the parties’ joint names (JT), the retitled property is deemed TRANSMUTED to marital property, except to the extent that contributed property is RETRACEABLE by: (a) a PREPONDERANCE of the evidence, and (b) the act of retitling was NOT tantamount to the making of a GIFT.

NOTE: Virginia Law does not presume that retitling of separate property into the married couple’s joint names, during the marriage, defines that retitling act as “gifting of” that property to the marriage! §20-107.3(A)(3)(h).


            (1) Definition – Commingling: The act of contributing one classification/category of property (e.g. separate property) into another classification/category of property that has the adverse classification/category (e.g. marital property).

            (2) Definition – Transmutation: When property is commingled, the contributed property takes on the classification of the receiving property = “TRANSMUTATION” (i.e. it is “swallowed up” and “disappears” into the receiving property thereby losing its prior classification status.

            (3) Tracing per 20-107.3(A)(3)(d): Although commingled property is automatically transmuted to the receiving property’s classification, that contributed property may not transmute to the receiving property’s classification, to the extent that it is RETRACEABLE by a:

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)

and . . .

  • Was NOT a GIFT. NOTE: Virginia Law does not presume that a commingling event defines the transaction as a “gift” (unlike in many other jurisdictions). §20-107.3(A)(3)(h)

Frye v Frye, Record No. 1829-10-4, May 03, 2011 – VA Court of Appeals; Robinson v Robinson, 46 Va.App. 652, 621 S.E.2d 147, Va.App., October 25, 2005 (NO. 1879-04-2); Theisman v Theisman, 22 Va.App. 557, 566, 471 S>E>2d 809, 813, aff’d on reh’g en ban 23 Va.App 687, 479 S.E.2d 534 (1996); and others: To establish the existence of a gift, such that a spouse’s separate property became marital property for purposes of an equitable distribution, the spouse claiming that there was a gift is required to prove, by CLEAR AND CONVINCING EVIDENCE, the following three elements:

(a) The INTENTION on the part of the donor to make the gift;

(b) The DELIVERY or TRANSFERof the gift; and

(c) The ACCEPTANCEof the gift by the donee.

(4) Newly Acquired Property per 20-107.3(A)(3)(e): When marital and separate property are COMMINGLED into NEWLY ACQUIRED PROPERTY[2] during the marriage[3] (defined below), resulting in the loss of identity of the contributing property, the commingled property is then transmuted to marital property, except to the extent that the contributed (non-marital) property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)


  • Was NOT a GIFT.   NOTE: Virginia Law does not presume that acquiring new property, during the marriage, with separate property defines that transaction/purchase as a “gift”. §20-107.3(A)(3)(h).

If the evidentiary burden is met, then the contributed property will retains its original classification. 20-107.3(A)(3)(f)

(5) Retitled in Joint Names per §20-107.3(A)(3)(f): When property is retitled in the parties’ joint names (JT), the retitled property is deemed transmuted to marital property, except to the extent that the contributed property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)


  • Was NOT a GIFT. NOTE: Virginia Law does not presume that retitling separate property into the married couple’s joint names, during the marriage, defines that retitling act as “gifting” that property to the marriage. §20-107.3(A)(3)(h) (although the opposite is true is other jurisdictions)

If the evidentiary burden is met, the contributed property retains its original classification. 20-107.3(A)(3)(f)

(6) One Party’s Separate Property is Commingled into the Separate Property of the Other Party per 20-107.3(A)(3)(g): In this type of situation, each party is entitled to be reimbursed the value of their contributed property to the extent that the contributed property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)


  • Was NOT a GIFT

(7) The Separate Property of Each Party is Commingled into the Parties’ Newly Acquired Jointly Owned (Marital) Property per 20-107.3(A)(3)(g): In this type of situation, each party is entitled to be reimbursed the value of their contributed property to the extent that that contributed property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of both parties)


  • Was NOT a GIFT


Q: If INCOME is Produced from Separate Property, is that Income also Separate Property?

A: Per §20-107.3(A)(1) of the Virginia Code, income acquired as a result of ownership in separate property remains separate unless:

  • The income is produced as the result of the PERSONAL EFFORTS[4] of either party . . .

but . . .

  • The income produced, as a result of the personal efforts of either party, is only classified as marital property TO THE EXTENT THAT THE INCOME PRODUCED IS DIRECTLY ATTRIBUTABLE TO THOSE PERSONAL EFFORTS. §20-107.3(A)(3) [the statute does not mention any need for the personal efforts to be “significant” or for the income produced to be “substantial”, in contradistinction to increases in value]

Q: If there is an INCREASE IN VALUE of Separate Property, is that Increase in Value also Separate Property?

A: Per §20-107.3(A)(1) & §20-107.3(A)(3) of the Virginia Code, the Increase in Value of Separate Property remains separate unless:

  • The Increase in Value is due to the PERSONAL EFFORTS of either spouse

                 and . . .

  • The Personal Efforts were SIGNIFICANT

and . . .

  • The Increase in Value must be SUBSTANTIAL

but . . .

  • The Increase in Value becomes Marital Property only to the EXTENT that the INCREASE in Value is DIRECTLY ATTRIBUTABLE TO those PERSONAL EFFORTS (“Active Appreciation”)

See Courembis v Courembis, 43 Va.App. 18, 595 S.E.2d 505 (2004) and Divorce Source article:

Q: If there is an INCREASE IN VALUE of Separate Property due to CONTRIBUTIONS of MARITAL PROPERTY to that Separate Property, is that Increase in Value also Separate Property?

A:   Per §20-107.3(A)(1) of the Virginia Code, the increase in value of separate property, which is the result of marital property contributions, changes the classification of that increased value to marital property

BUT . . .

  • Only to the EXTENT that the INCREASE IN VALUE is DIRECTLY ATTRIBUTABLE to the marital contribution. (§20-107.3(A)(3))


Under §20-107.3(A)(3)

Q: Increase in Value: Who bears the burden of proof when there is a question regarding PERSONAL EFFORTS (during the marriage, i.e. marital efforts) or CONTRIBUTIONS OF MARITAL PROPERTY having the effect of increasing the value of separate property?       

A-1: The NON-OWNING SPOUSE (the spouse without the separate property interest) bears the burden of proving that:

  • the contributions of marital property and/or personal efforts (during the marriage by either or both spouses, i.e. marital efforts) were made;

                   and . . .

  • the separate property increased in value (no increase in value, discussion over!).

Once this burden of proof is met then:

A-2: The burden SHIFTS, and the OWNING SPOUSE (the spouse with the separate property interest) bears the burden of proving that:

  • the increase in value (or some portion thereof) was not caused by the contributions of marital property or by the personal efforts of one or both spouses. §20-107.3(A)(3).

Q: What is the Burden of Proof in terms of Debts Acquired After the Marriage (in Virginia = after Separation) being classified as Marital Debts?

 A: Per §20-107.3(A)(4) – To the extent a party can show, by a PREPONDERANCE OF THE EVIDENCE, that debt acquired post separation was “incurred for the benefit of the marriage or family, the court may designate the debt as marital.”

Q: What is the Burden of Proof in terms of Debt Acquired During the Marriage being Separate Debt?

 A: Per §20-107.3(A)(5) – To the extent a party can show, by a PREPONDERANCE OF THE EVIDENCE, that “the proceeds secured by incurring the debt were used, in whole or in part, for a non-marital purpose” that debt will be classified as separate debt.


 In Virginia, courts have no authority to order the division or transfer of separate property/debt OR marital property/debt which is NOT JOINTLY OWNED. §20-107.3(C). (Remember: Virginia assumes that all property acquired during the marriage is jointly owned, unless otherwise indicated by proper documents (e.g. account statements, deeds, titles, certificates, etc). §20-107.3(A)(2)


§20-107.3(A)(3)                                  §20-107.3(H)

The court may direct payment of a % of the marital share (defined below) of any personal injury or worker’s compensation recovery of either party.

  • This is true whether such recovery is payable in a lump sum or over a period of time.
  • The court, however, will only direct that payment be made as such recovery is payable to the injured party. (Same time periods, methods of payment, etc.)

Marital Share defined: The marital share of Personal Injury Payments or Worker’s Compensation is defined as: That part of the total PI/WC recovery attributable to LOST WAGES AND/OR MEDICAL EXPENSES that are not covered by health insurance accruing during the marriage (before separation).

If you are considering divorce, and have a situation wherein separate property has been commingled with marital property, mediation may be the best and least expensive method of working through this issue and coming up with a mutual agreeable solution for settlement. Give Graine Mediation a call at 571-220-1998 to discuss your situation. Mediation is appropriate for most people who are considering divorce unless there is a history of domestic violence, child abuse or concealment of assets. Whether you choose Graine Mediation, or opt for another mediation firm, and there are issues of hybrid (commingled) property, consider choosing an attorney-mediator who knows the law and can guide you through the complexities of this area of Virginia law.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


[1] “Property” is a comprehensive terms that includes personal property, real property, tangible property and intangible property. That means that the term “property” includes money, investments, houses, land, collectibles, furniture, automobiles, animals, and just about any other “thing” that you can think of (except children!).

[2] Example: Wife comes into the marriage with an inheritance ($). She uses that $, in combination with money she and H earned during the marriage, to purchase a boat (before the husband & wife separated).

[3] During the Marriage” defined:Property acquired from the date of marriage (DOM) through date of separation (DOS) (agreed or adjudicated). If couple agrees, “during the marriage” can also means DOM through date of divorce (not, the legal definition of separation in Virginia…but may be agreed upon by the parties (and is common in many of the jurisdictions)).

[4] Personal Efforts defined: Labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party. §20-107.3(A)(3)


FAMlaw Seminar Announcement

April 16, 2014

Robin Graine to Speak at FAMlaw Seminar

May 13, 2014 ~ Fairfax, VA

Virginia State Bar Approved for MCLE Hours

             On Tuesday, May 13, 2014, Robin Graine, JD of Graine Mediation will be speaking, along with a distinguished panel of lawyers and judges, at FAMlaw’s Fairfax Seminar: Practicing Family Law; Avoiding Malpractice”

 To pre-register for this seminar, visit or call 800-272-5053.

 8:30am – 4:30pm on Tuesday, May 13, 2014 – Fair Oaks Marriott

11787 Lee Jackson Memorial Hwy, Fairfax, VA 22033

$249 registration fee for the first attendee

$189 for 2nd and 3rd registrant from same firm

            Ms. Graine will be giving a talk on the importance of mediation as a settlement option when couples decide to get a divorce. She will also give the nuts and bolts of practicing mediation in Virginia. Specifically, Ms. Graine will cover:

  • What is mediation?
  • What does a typical mediation look like?
  • What needs to be included in an Agreement to Mediate?
  • Do clients have rules to follow in mediation?
  • Do mediators have rules to follow?
  • How do mediators maintain their neutrality?
  • Is mediation confidential?
  • Are mediators allowed to also practice law?
  • What do you do, as a mediator, when clients “lose control”?
  • Is there a difference between court ordered and voluntary mediation?
  • What does the term “mediator as educator” mean?
  • Are there differences between a Mediated Property Settlement Agreement and an attorney drafted Property Settlement Agreement?
  • What is the criteria and training necessary to become a mediator?

Other seminar highlights include:

  • How to avoid QDRO and divorce malpractice lawsuits
  • What does divorce litigation look like from the bench?
  • How to properly use support-based QDROs
  • Expert Analysis of Virginia Code §20-107.3 (equitable distribution of property & debt)
  • Strategies for tough child custody & spousal support cases

Other speakers include:

Raymond S. Dietrich, JD

- Founder of QDRO Trak

- Author of Qualified Domestic Relations Orders: Strategy and Liability for the Family Law Attorney (Matthew Bender 2013 ©)

Principal attorney in the Galleon Network – a national network of licensed attorneys specializing in the drafting and litigation of QDROs and COAPs for lawyers and clients

Honorable Lorraine Nordlund, 19th Judicial Circuit of Virginia (Fairfax)

- Serving Fairfax County as a judge since 1996; sworn in Circuit Court on February 1, 2010

- Reputation in the legal community for thoughtful and fair decision-making

David L. Duff, JD

- Founding, principal attorney at The Duff Law Firm (Fairfax, VA)

- Practicing law since 1976

- Divorce attorney as well as personal injury, auto accidents, and legal malpractice

John C. Whitbeck, Jr., JD

- Founder of Whitbeck Cisneros McElroy, P.C.

- Practice focuses on family law, education law, criminal law, mental health law and civil litigation

- Former professor of law at George Mason University Law School

- Former director of George Mason Mental Illness Clinic

Alanna C.E. Williams, JD (Duff Law Firm)

- Reputation in the community as a tenacious advocate for divorce clients as well as an effective negotiator

- Joined The Duff Law Firm in 2004; made a Principal of the firm in February 2009

Wesley P. Gelb, JD

- Partner at Ain & Bank, Washington, DC

- Practice focuses on family law and general litigation

- Broad experience litigating family matters in Washington, D.C., Virginia and Maryland

Are people happier after divorce?

February 8, 2012

So often, when people feel trapped in an unhappy marriage, they think that their only option is to either continue suffering in a miserable home life, or to take the drastic step to get a divorce. When divorce is chosen, the initiating party typically reasons that he or she will be happier after the divorce. But how true is that reasoning? Are people actually any happier after divorce?

According to at least one study, headed by University of Chicago sociologist Linda Waite, 66% of unhappily married spouses who chose to “stick it out” and stay married, reported that just five years later their marriages returned to happy.

To find out how these once unhappily married spouses were able to restore happiness within the confines of marriage, researchers formed a focus group. They interviewed 55 of the formerly unhappy, but now happy, husbands and wives and found their responses could be organized into the following three approaches:

  1. Marital Endurance;
  2. Marital Work; and
  3. Personal Happiness.

In the Marital Endurance group, when the couple (or at least one spouse) had reported being unhappy, they also were dealing with relatively situational types of problems. Examples include job loss, bankruptcy, parenting a troubled teenager, even infidelity, in some cases. With these couples, it was mostly the passage of time that allowed for much of the marital happiness, they had once known, to return.

In the Marital Work group, couples worked proactively together; they worked hard and took matters into their own hands. With the help of a couples’ counselor (e.g., a licensed clinical psychologist; licensed marriage and family therapist; or faith based counselor), or taking part in one or more marriage workshops, these couples successfully resuscitated their marriage’s happy side.

In the Personal Happiness group, the unhappy spouse worked with an individual therapist to get to the root of what was making him or her unhappy, assuming that it was not just the marital partnership that was causing his or her despondency. In these cases, improving one’s individual happiness, also improved the happiness of the marriage.

All this sounds like great news for anyone unhappily married, but not keen on the idea of divorce. And let’s face it, no one is actually keen on divorce! Essentially, even if you are unhappily married, sometimes simply “sticking it out” can make the bad times give way to much happier ones. And, when that isn’t enough, which it often isn’t, many couples still find great success at restoring their marital happiness through couples counseling, individual therapy, or some combination of both.

Posted by Maggie Fox Dierker, Esq.

What Factors Influence an Individual’s Willingness to Cheat?

January 26, 2012

There are four factors that seem to have the greatest influence over whether a spouse will cheat or not. These factors are pretty basic and probably won’t surprise many people. They are the same factors that probably influence caveman and women, too. Human nature just doesn’t seem to change!

Good Looks, Charisma & Wealth – Just like the peacock, men with beautiful plumes often get their choice of pea hen.  For women, those described as “sex-pots” and “hottie’s” are often sought after by men – ring or no ring.   No new information here. That’s why people tell you that, if your middle-aged hubbie is suddenly sporting a new look, you might want to start asking some questions; and same guess for a middle-aged women. Better to marry dowdy and shrek-like than dapper and gorgeous, charming, and rich no explaination needed here.

Opportunity and Free Time – Couples that lead fairly separate lives – social lives, careers, travel – are more likely to cheat than couples that spend most of their time together.  Of course, couples that spend every minute together can get awful sick of one another and may never grow as people.  Somewhere in between suffocation and total freedom is probably best.

Risk Taking Personalities – People who like a thrill tend to get themselves involved in extramarital affairs more than homebodies and cautious people. If you’re married to one of those adventurous types, better look into couple’s sky diving or bungee jumping… or you might be in for a sad surprise.

High Sex Drive – Obviously, if you don’t like sex, you will be less likely to seek it out!  People who love sex, and those that have an “addiction” to the excitement, thrill and titilation of “the kill” are at great risk of cheating.  No matter how wonderful the sex life of a married couple, it can be hard to compete with the “new” (for some people!)

Feeling Neglected, Unappreciated – Of course, unless the cheater feels somehow entitled to a harem or stable of studs, most individuals engaged in extramarital sex are truly unhappy in their marriage.  They often feel neglected, both physically and emotionally.  They talk of being unappreciated, misunderstood and unloved. This is open door for extramarital affairs. Love the one you’re with!

Using Divorce Clients Emotions for Positive Settlements in Mediation

January 25, 2012

Divorces are emotional.  Therefore, taking the emotions out of a family mediation and treating it just like a business transaction rarely works.  The key to a successful divorce settlement mediation is to tap into the emotions that best serve the clients’ realistic goals and their children’s’ best interests. Emotional upset does not usually contribute to positive outcomes (e.g., inability to focus, too quick to settle, too angry to negotiate), but redirection of emotions is often very helpful (e.g. passionate negative response to the break-up of a family –> passionate desire to raise happy, well-adjusted children)

Positive Emotions: Anticipation, Empathy, Joy, Acceptance, Trust

  • Helping clients stay positive, focused on the future and assisting them in seeing opportunities in their situations is very important when people are going through a divorce.
  • Family mediators should encourage empathy, especially where clients are coming to mediation after having had the empathy “knocked out of them” by the court system.
  • Keeping the mood light in mediation, smiling and even freeing up the mood for a little laughter, always helps, but cannot be pushed.
  • In a divorce mediation, there is often one party who is fully ready for the divorce, while the other is still in a bit of shock.  Acceptance may not come for a long time and often requires therapy, but good mediators can help get the “shocked person” started down the path.
  • Intense lack of trust due to adulterous affairs can threaten to blow a mediation.  There is often the question: How can I trust him/her to be forthright with the financial information when I cannot even trust him/her to be faithful?  This is a question that often needs to be sent back to the parties.The “non-trusting” spouse needs to make the ultimate decision him/herself.  There are a lot of people who, though untruthful in body, are truthful in money!

Negative Emotions: Fear, Anger, Despair, Disgust, Frustration, Surprise

  • Negative emotions need to be balanced with positive emotions (“flipped on their head”, e.g. fear of the unknown –> excitement about the opportunity to form new life dreams).
  • Negative emotions often lead to black & white thinking (not generally very creative).
  • The emotion of “surprise” is usually uncomfortable in a divorce mediatin situation.  I have seen clients make offers in mediation that they never came close to making outside of mediation (e.g., willingness to help with transportation of children, spousal support, etc.)  No matter how seemingly good the “surprise” is, the other party is often angry just because she/he has been surprised.   This is always a good time to focus on the goal (e.g., You wanted spousal support, now it looks like you are going to get it.  It doesn’t matter that it was “no, no, no” up until now!”)
  • Obviously it is best if negative emotions can be kept to a minimum.  They are often counterproductive and solicit negative feedback from other party. Balance is key.           

 Neutral Emotions: Sadness

  • Although most people would consider sadness a “negative emotion”, I put it into the “neutral” category because it is almost always present in a divorce mediation in one way or another.  It’s nice if your mediator is empathetic to your sadness, but doesn’t get too drawn in. Mediators with positive outlooks and a cheerful disposition can often be a comfort to clients and joyful people sometimes can help sad people feel a little better, though this is not always the case.


January 19, 2012

PNC bank has a new policy, I have been told by a trusty loan officer in the higher ranks of that enterprise, that child support no longer counts as income for the purpose of obtaining a home equity line of credit or small business loan.  This is true even for very large amounts of child supports. I was told, straight-up, that married female applicants whose husband’s who have jobs, earning the same amount of money as an ex-wife’s child support allotment, are much more credit-worthy than single moms who are receiving regular, provable, court-ordered child support.  Is this prejudiced against single moms?

In my line of work, I see lots of mother’s whose husbands leave the marriage — without warning.  Of course, those husbands take their jobs with them!  As a mediator, though, most of my clients are decent people that pay their child support obligations. Nevertheless, even women who have upstanding child-support paying ex’s, and are seeking a loan, can no longer count that cash-flow as part of their income.  This is absurd considering the same woman could have counted that same amount of family income as cash flow, for purposes of obtaining a loan, if she were still married to her children’s father – even if he spent that money foolishly and contributed nothing to the family.

I was also told, by my PNC informer, that no amount of money in the bank is worthy of consideration when it comes to approving a loan – unless that money is in PNC’s own coffers and can be used as direct collateral.  That means that people who are responsible and work hard to save their money and put it in the trusty hands of a good broker, are considered, at least by PNC Bank, to be a greater credit risk than people who spend every penny they have with no thought for the future. Essentially, PNC prefers loan applicants with a low-paying job, with no hope of putting anything away for the future, over a person who has a pile of dough at the ready.

This doesn’t make sense.  People are losing their jobs right and left.  There is no security in an individual’s employment.  However, if a person defaults on a loan, the bank can get a judgment against that person and garnish their bank or brokerage account.  When is the last time, though, you ever heard of a bank forcing an employer to keep a person on the payroll so that that person could pay off a loan?

And, finally, we all know that the equity in your home is worth nothing to the bank.  They don’t want your home if you default.  They have enough homes to keep them busy for a long time.  They have so many homes, that they cannot even afford to heat and cool them properly and residences across the nation are molding and rotting as a result.

So, if you want to start or grow a business with a home equity line of credit or a small business loan from your local bank – as was the norm for many, many years – forget about it, unless you have a regular paycheck, with at least a three year record of earnings– even if you have a hefty court-monitored source of cash flow, a flush bank account and tons of equity in your home.


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