What to Expect in Divorce Mediation

March 7, 2017

When shopping for a good mediator, here is what you should be looking for. Mediators who settle cases efficiently and fairly do the following:

  1. Key Issues. Help you figure out what the real issues are and focus in on these matters.
  2. Goals. Help you formulate your goals and keep you on track towards reaching these goals.
  3. Fair Process. Ensure that the settlement process is fair for both parties by evening-up the playing field in terms of power and knowledge.
  4. Documents and Information. Assist in formulating a list of necessary documents and information so that you do not get overwhelmed at this emotionally difficult time.
  5. Sorting and Categorizing. Assist in the efficient sorting and categorizing of key facts, laying out the family financial picture, determining which issues are emotional/personal versus matters which can actually be settled in mediation, and determining which battles are worth fighting.
  6. Education. Educating and informing you with regard to relevant legal, financial, tax and child-related matters.
  7. Negotiation Techniques. Use of time-tested negotiation facilitation techniques (e.g. neutralizing language, focus of needs versus strategy, ensure key information is understood, focus on problem solving versus punishment).
  8. Property Settlement Agreement. Provide excellent skills in writing up your Property Settlement Agreement. This is the court-ready document that sets forth your entire divorce settlement agreement. An experienced lawyer-mediator is usually best when it comes to writing up such a document.

By Erin Brockman, Mediation, Research & Marketing Assistant
Robin Graine, JD, CDFA


How Does Mediation Save Divorcing Couples Money?

November 23, 2015

It seems that everything is getting more expensive these days, and divorce is no exception. Luckily, mediation can be a good way to save money during the divorce process. Here are some simple ways mediation can help:

  • No “Surprise” Billing. Most work is done in the mediation room and it is easy to keep track of what the divorce settlement process is actually costing.  Mediators don’t nickel and dime their clients to death.
  • One Mediator, Not Two Attorneys. When both parties have their own attorney, the $300-$500 per hour fees rack up quickly, especially when multiplied by two attorneys (as opposed to only one mediator at an often lower hourly fee).
  • Get to the Point. Mediation is less strategically oriented than litigation.  This allows clients to address their and their children’s real needs faster and with a focus on mutual agreement versus winning the fight.
  • Sensible Information Gathering Process. There is no formal “discovery” in mediation.  Discovery is the court-supervised and procedurally complex method that attorneys use to gather information in a divorce case.  Keeping the information gathering process to its essential elements saves clients thousands of dollars that they will need to run two households where there once was only one.
  • Focus on Present and Future, Not Past.  The focus in mediation is on helping the parties to find common ground and mutual agreement that will allow them to start their and their children’s new lives in as good a position as possible considering the circumstances.  Past behaviors and transgressions are usually minimized, unless they directly impact the present or future.  This is the opposite of litigation, where past wrongs and transgressions are often the focus of the fight itself.

save-money1Don’t let tight finances keep you from moving forward with a divorce when it’s the best decision for you and your family. Speak to a mediator and see how they can help.

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.


The 3 A’s of Avoiding Divorce

August 18, 2015

As a certified divorce mediator and a former divorce attorney, I’ve worked with hundreds of couples over 13 years in family law who were filing for divorce. Here’s what I hear from clients — over and over again – as the key reasons for the break-up of their marriage. I call them the 3 A’s:

Lack of Affection. Though cliché, it’s true: When baby makes three, both parents are often consumed with showering their new baby with the most affection possible. As the child grows, couples forget to smooch their spouses, too.

Lack of Attention. Couples often feel ignored in their roles as spouses, parents and, often times, human beings! It’s no secret that jobs, child-rearing, in-laws, financial worries and responsibilities of running a home eat up your time and energy. If you want to save your marriage, though, start by giving your spouse the focus that or she deserves and needs.  Be intuitive, remember what your husband or wife needed back when you were dating, and try and give him or her that level of attention that you, too, need in order to feel secure in your relationship.

Lack of Appreciation. This is perhaps the biggest contributing factor in the divorcing clients that I work with — I hear it, in one form or another, from every set of mediation clients that I encounter. In many cases, women feel they do the lion’s share of the homemaking. When the kids were born, they changed around their priorities. The husbands, or so I hear, didn’t change their everyday lives quite as drastically as did the wives. The husbands, often times, feel that they are not appreciated for their financial contributions and the actual time that they do spend with the children. Each resents the other for longer hours put in at work and chores, and forgets to thank the other partner for keeping the family enterprise afloat. One thing that helps? Parents need to divide and conquer the mundane tasks of everyday life. If mom is best at details, let her do the details: whether it’s party-planning or setting up that 509 for Junior. But dad needs to do the other stuff, like preparing taxes or working with the kitchen contractor. The key is quite simple: Work hard at appreciating what the other is doing and know that 50/50 is not always a practical goal to attain depending on each others’ personalities and priorities.

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.


Child Custody In a Virgina Divorce: Legal Custody & Physical Custody Defined

June 9, 2015

child custodyWhen discussing various parenting arrangements with clients and prospective clients, I have learned that most people who are in the midst of a divorce/separation, or are contemplating such an event, make similar mistakes when it comes to Virginia “custody terminology”.

Such vocabulary faux pas are hardly indicative of a parent’s heartfelt desire to spend time with his or her child.  However, it is usually helpful to clients when they begin to get a handle on how the Commonwealth of Virginia goes about assigning labels in the context of divorce and co-parenting.  (Co-parenting refers to any situation when two parents are raising a child, in two separate households, whether or not those parents were ever married).

Of course, your mediator or divorce lawyer should certainly be able to figure out what you mean – no matter how you phrase it – when it comes to your desires for your child’s future parenting arrangements.  Not all mediators or divorce lawyers, however, do a good at explaining legal terminology.  The same goes for clients’ ability to absorb and process information in such a stressful and confusing time.

As a result, I have seen plenty of post decree (after divorce) situations where basic misunderstandings of the custody terms in the parties’ Final Order of Divorce (aka Divorce Decree) kept them fighting about their child several years after their separation and divorce.

To help alleviate this unfortunate and rampant misinformation about various custody terms in Virginia child custody cases, here is my “Virginia Custody Dictionary.”

Legal Custody:

Determines which parent has the right to make major decisions concerning their child.  Legal custody has nothing to do with where the child lives.

There are two types of Legal Custody:

    (1) Joint Legal Custody –  

        Major decisions must be agreed to by the parents.

    (2) Sole Legal Custody –

        Major decisions need only be made by the parent who is granted Sole Legal Custody.

  • The term “Legal Custody” is not intuitive to most people and problems often arise, down the road from when the settlement agreement is signed/Court order is entered, over the parents’ often diametrically opposite interpretation of the term “major decisions”.
  • Mediators encourage clients to jointly define the term “major decisions,” as part of the settlement of the custody issues in their particular case, to help save them from possible trouble down the road.
  • On the other hand, divorce lawyers tend not to focus on crafting an agreed client-interpretation of the term “major decisions”. Instead, they leave it up to the Courts to decide, should there be a problem in the future, whether a decision made, or to be made, by a parent is, in fact, “major”.  Ultimately, the Courts do have final decision-making power; but, a meeting of minds between parents is usually enough to end bitter battles before they start.
  • Examples of “Major Decisions” – Those decisions which are generally agreed by divorce lawyers and courts to be “major decisions”:
  1. Which school the child will attend;
  2. Whether the child will be required to undergo an elective medical procedure (e.g. plastic surgery on a scar);
  3. Whether braces will be placed on a child’s teeth for purely cosmetic reasons;
  4. Whether a child will be required to engage in psychotherapy;
  5. Who will be the child’s substitute caretaker necessary for the parents to earn a living (known as “work related childcare”, aka WRCC); and
  6. Choice of sleep-away camps.
  • Examples of “Gray Area Decisions” – Where decisions may or may not be considered “major”:
  1. Which week or two-week long camp a child will attend in the summer (not sleep-away camps);
  2. Which extracurricular activities a child will participate in during that parent’s custodial care time.
  3. Whether a child will participate in a specialized academic program during school hours (remedial or enhanced learning);
  4. Whether a child will participate in various in-school clubs, groups and activities;
  5. Choice of classes (middle school and high school);
  6. Choice of basic disciplinary techniques;
  7. Choice of how much to give a child for allowance/spending money; and
  8. Choice of vacation destinations with children (within reason);
  9. Choice of children’s playmates.

Physical Custody:

Determines where the child will live and the amount of time the child will spend with each parent.

Physical custody pertains to which parent (sometimes both, sometimes only one) has the primary responsibility for the care and control of the child on a given day.

  • Day to day decisions, of a routine nature, are made by the parent with whom the child is being cared for on that day.

 

Sole Physical Custody:

  • In Sole Physical Custody situations, that parent is granted all (or almost all) of the custodial care rights and responsibilities for the child.
  • The other parent is not usually involved in day-in-and-day-out responsibilities that come with raising a child.
  • The other parent is usually permitted “visitation” with his or her child (except in cases where that parent would present a danger to the child);
  • In Virginia, even in cases where one of the parents is granted Sole Physical Custody, the other parent still has the legal right to review the child’s medical and academic records (with exceptions);
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, the “regular” calculation is called the “Sole Child Support Calculation”.  This poorly named calculation simply means that the non Primary Custodian cares for the children fewer than 91 days per year,2  even though the caretaking duties may clearly be shared between the parents.
  • Advocating for the denial of a parent to be involved in major decisions concerning his or her child is serious. It generally means that there is something very wrong with one or both of the parents’ ability to care for the child and/or use sound judgment when making decisions concerning the child.
  • In cases where one or both of the parents thinks that a child should have no or very little custodial care time with the other parent, it is often advisable that those parents litigate (hire a divorce attorney) and not mediate their cases.

Shared Physical Custody:

  • In Shared Physical Custody situations, it is presumed that both parents are involved, to a much greater extent than in a “Sole Custody” situation, in the day-in-and-day-out responsibilities that come with raising a child.
  • However, Shared Physical Custody does not, necessarily, mean 50/50.  It does, however, mean that there is a discernible sharing of parental caretaking duties for the child.
  • The term “Shared Physical Custody” is not clearly defined in Virginia law in terms of custody and parenting arrangements.
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, there is a special calculation available for situations where a “non-primary custodian” cares for a child 91 or greater days per year.  That calculation is called the “Shared Child Support Calculation.” The Virginia Shared Child Support Calculation is able to accommodate various ratios of caretaking duties (e.g. 50/50 custody, 60/40 custody, etc.).

Primary Physical Custody:

  • The parent who is the “Primary Physical Custodian” is usually the parent who cares for the child greater than 50% of the time.
  • The term “Primary Physical Custodian,” however, is not well-defined in Virginia law.  There are situations where parents have less than a 50/50 custody share (exp. 60/40, 70/30), but where a settlement agreement/Court Order show that the custodial care plan is “Shared Custody” (even though there is, by most standards, a “primary parent”).
  • Some divorce attorneys are concerned that a judge may allow a parent, who is referred to as the “Primary Custodian,” in the settlement agreement/Court Order, to have more potential influence in possible future battles involving the child (e.g., moving away with the child).
  • If a parent is referred to in a settlement agreement/Court Order as the “primary custodian,” a school district may defer to that document when determining which school a child should attend.  (See previous Blog article: https://fairfaxdivorceblog.com/?s=prince+william )

In certain situations, and if there is no tax planning as part of the parties’ settlement, The IRS automatically awards certain child-related tax benefits to the “Custodial Parent”.  The IRS does not use the term “Primary Parent”.  The “Custodial Parent,” in terms of tax law, is the parent who cares for the child greater than 50% of the time during that tax year.  If the settlement agreement/Court Order conflicts with the actual caretaking schedule, this could present a problem if both parents wish to claim the child as their dependent exemption. This is not a problem, however, if parents insure that the settlement agreement/ Court Order matches their actual caretaking activities and if they make sure that tax planning is a part of their settlement (as it should be). (See previous Blog article https://fairfaxdivorceblog.com/?s=tax+custody )

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.


Divorce and Your ADD/ADHD Child

February 24, 2015

ADHD_classroomIf you are in the midst of a separation or a divorce, and have a child with diagnosed ADD or ADHD, there are things you can do to make the transition easier for him or her.

First, recognize that your child especially needs structure and order to best perform. As you go through your separation or divorce, it may feel like life has been tipped upside-down to your child. They may be spending time in two households, instead of one. Their daily routine may be interrupted and changed. It may feel harder for them to know what their schedule is on any given day.

Because of this, separating parents should be actively focused on effective co-parenting. Make and enforce similar schedules, so that your child has consistency. Psychologist Judith Glasser, Ph.D., suggests imposing similar bedtimes and amount of screen time allowed.[1] Consider setting up a shared Google Calendar account, so that your child’s schedule will be in one centralized location.

Second, be mindful of the amount of conflict your child is exposed to. While this is good general advice during a divorce, conflict is especially disruptive to a child with ADD/ADHD. This kind of disruption can actually exacerbate the symptoms of their condition.

Psychiatrist Mark Banschick, M.D., describes this in his article for PsychologyToday.com. “Children with ADHD have trouble regulating their emotional responses and the turmoil of a divorce may lead to volatility.”[2] That means your child, whose symptoms were otherwise being managed effectively, may now be acting out more than ever. A good way to mitigate the effects is by considering mediation over litigation. Studies have pointed to the idea that divorce mediation reduces conflict, while litigation increases it.[3]

Third, recognize that your attention may be diverted at times by your divorce, and you will need help. Reach out at the beginning of the process instead of waiting until you feel you’re underwater and you don’t have time to help your child manage his or her ADD/ADHD. This may mean more than just asking friends and family for help. Consider speaking to parenting or family counselors who can help you with your child’s specific needs.

And finally, keep your child’s special needs in mind when drafting your financial agreement. Again, Judith Glasser: “The cost of specialized services for children with ADHD should be considered as parents make decisions concerning child support and spousal support. Children with ADHD may need specialized services such as psychiatric care, individual, group and family psychotherapy, tutoring, coaching and private school. These are expensive and need to be considered in the financial agreement.”

These are good general guidelines for helping your child with ADD/ADHD cope with your divorce. However, every family is different. It is up to you to be proactive and find the help that is right for your situation.

Posted by Jane Baber, Mediation Assistant

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] http://www.childandfamilymentalhealth.com/adhd/adhd-and-divorce/

[2] https://www.psychologytoday.com/blog/the-intelligent-divorce/201304/adhd10-helpful-tips

[3] Robert Emery, Ph.D. The Truth About Children and Divorce, 2006


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.


Just the Facts: Spousal Support in a Virginia Divorce

April 29, 2014

alimony-spousal-support“Alimony” and “Spousal Support” are the same thing. In Virginia, alimony is called “spousal support”. Also, alimony is sometimes referred to as maintenance. To the IRS, though, it’s all the same: “Alimony”.

Spousal Support is not guaranteed in Virginia. In Virginia, Spousal Support is neither presumed to be appropriate in any particular type of divorce case nor is it presumed unnecessary in any particular type of case in divorce case. Spousal Support is awarded on a case-by-case basis (both in the courts and in mediation).

Spousal Support is often awarded to SAHM’s (stay at home mothers), spouses who have a much lower income than the other spouse, spouses who have the potential to be financially independent (but need help getting there), and spouses who remain in an expensive-to-maintain family residence (usually for the sake of the children). Spousal support that is temporary, and designed to financially assist the receiving spouse while she (or he) prepares for employment, is referred to as “Rehabilitative Support”.

Need-Based Calculations versus Formula-Based (Pendente Lite) Calculations. In Virginia, the divorce courts utilize specialized calculations, called pendent lite spousal support calculations. This formula, originally intended to be a temporary calculation used for emergency situations, but now used often by the courts, lawyers and mediators when trying to determine a “fair” amount of spousal support, holds a lot of clout in the courthouse (Fairfax, especially). If your case looks like an alimony case, it is usually recommended that you run the pendente lite calculation to see what the “risk” is to the payer, and what the possible monthly award will be to the recipient.

To determine a more “real life” amount of necessary spousal support, a basic need-based approach is also helpful. Need-based calculations require both spouses to list their expenses (and projected expenses). These expenses are then compared to the net income available to support two households (which also includes the child support to be paid).

Often times, there will be a shortfall in both parties’ ability to pay their expenses. With budgeting adjustments, creativity and planning – alimony often being a chief player in the mix – Graine Mediation is able to help couples settle most cases despite the financial hurdles involved.

What are the tax effects of spousal support? The recipient is taxed on alimony at her (or his) tax rate. In other words, alimony is considered “earned income” by the IRS. The payer of spousal support is allowed to deduct the alimony paid, dollar for dollar, from his (or her) gross income, thereby decreasing the income upon which he (or she) will be taxed. In other words, the payer’s adjusted gross income is decreased by the amount of alimony paid. The party who receives the spouse support, on the other hand, will pay taxes on that money at the same rate as her (or his) earned income is/would be taxed.

What is the effect of spousal support payments on child support? Since alimony (spousal support) increases the gross income of the receiver, and decreases the gross income of the payer, the payment of spousal support decreases the presumed child support amount when calculated using the Virginia Guideline’s formula.

Is Spousal Support modifiable? Spousal support is modifiable – both in terms of the amount and/or duration – depending on how the Mediated Property Settlement Agreement is written (i.e. what the parties agree to). If a couple agrees that the spousal support award is to be modifiable, the terms of that modifiability must be stated very clearly in the Mediated Property Settlement Agreement. Otherwise, the court may base a future decision regarding modification of a spousal support award on the “default” standard: “Whether or not there has been a material change in circumstances not reasonably contemplated by the parties”.

Can there be no spousal support awarded at divorce, but a window left open for an award at a later date? The possibility of a future award of spousal support may be left open in a Mediated Property Settlement Agreement. The term for this is “Reviewability”. Clients may leave a period of review open — whether or not there is an actual dollar amount of spousal support to be paid. The period of time in which the parties may seek an award of spousal support (the review period) may be whatever is agreed upon by the parties. If a period of review is left open, but no time period is specified, the “default” in the law is 50% of the length of the marriage.

Leaving a period of review open is useful if the potential recipient feels insecure about his or her future earning power, but there is no actual need for alimony at the time of settlement.

How long does Spousal Support last? There is no clear law on this, but the rule of thumb in Virginia, when spousal support is deemed appropriate, is 50% the length of the marriage. It depends, of course, on the purpose of the spousal support (e.g. to help get a mother back on her financial-feet, to allow time for a parent to get re-trained/degreed, to offset the costs of living expenses for a specific period of time, to provide full and ongoing support to a former spouse, etc.)

In marriages of greater than 20 years, where the spouse seeking support was not an income earner, or her (or his) income is relatively low compared to the other spouse, permanent alimony (or at least up until the other spouse’s retirement) might be appropriate. This is not the law, but both parties should be aware of this legal trend in Virginia, especially where the spouse seeking the support is on the older side.

Is adultery a bar to spousal support? If the spouse against whom an award of spousal support is sought (the bigger earner) is able to prove the ground of adultery against the spouse seeking the support, there will be no alimony awarded. However, proof is often hard to come by. Also, if the court finds that a denial of spousal support to the adulterer would be “manifestly unjust”, the judge can award it to her (or him) regardless of the marital transgression.

What happens when the party receiving spousal support gets remarried or cohabits: Unless otherwise agreed by the parties, remarriage or cohabitation “in a relationship analogous to a marriage for a period of 1 year or more” (statutory definition) will result in the cessation of all spousal support payments. Of course, the term “relationship analogous to a marriage” is not clearly defined in the law and, in some mediations, clients are urged to discuss and determine what that phrase means to them (in order to avoid future litigation).

What does “Child Contingency” and “Recapture of Alimony” mean? The tax law related to alimony is fairly complex. Two areas, in particular, often come up in a divorce mediation: Child Contingency and Recapture of Alimony.

The Child Contingency rule has to do with the IRS’s sensitivity to taxpayers classifying payments as alimony (to get the tax deduction) when, in reality, those payments are really a form a support for the children (child support). The Child Contingency rule can be triggered when an award of alimony ends at the same time, or near the same time (within 6 months to a year, depending on the specific circumstances), of a child-related event (e.g. child turning 18 years old, graduation from high school). For more detail, see my Fairfax Divorce Blog article at https://fairfaxdivorceblog.com/?s=contingency

In a Recapture of Alimony situation, the IRS is looking for deductible alimony payments made, during the first three years following a divorce, which are actually more in the nature of a property distribution. Once again, the IRS is very sensitive to parties classifying payments as deductible alimony when those payments are more aptly classified as some other sort of non-deductible payment such as part of the equitable distribution and division of property (which includes the transfer of money from one spouse to another and may be in the form of a lump sum or paid out in periodic payments). For more detail, see my Fairfax Divorce Blog article at https://fairfaxdivorceblog.com/?s=recapture

Seek Professional Guidance: The law regarding spousal support in Virginia and the Federal Tax Code is fairly complex. Not only that, but the relationship between spousal support, child support and the equitable distribution of property and debt can be overwhelming and easily misunderstood. If you think that your case may involve a need/request for alimony, seek professional guidance from a lawyer-mediator. We are here to help: Robin Graine, JD – Graine Mediation – 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.


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 www.famlawseminars.com 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


Marital versus Nonmarital Property: The Law and Application in a Mediated Divorce Settlement

June 25, 2013

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In mediation, I work with parties to help them classify their property as marital, nonmarital or hybrid (some of each) property.  This is important because, in Virginia, judges are only allowed to order the division and distribution of marital property (and that portion of hybrid property that is marital).  Nonmarital property, on the other hand, stays with the party who owns it  — at least that is the rule when a divorce case goes to the judge.

In mediation, parties may or may not choose to follow these rules.  Unlike judges, parties who settle without court intervention are free to divide and distribute their property however they see fit. In my mediations, however, I make sure that the parties at least understand the rules before they decide on another way of doing things.  Just like a good English teacher will tell you: “It’s best to know the rules before you break them!”  This is all part of the mediator’s role in ensuring that the parties make informed and thoughtful decisions based on both their unique set of circumstances and a comparison of how they might fare in litigation.

The type of property that is classified, divided and distributed, upon divorce, includes everything – even the kitchen sink . . . and the dog.  The most common types of property that are the subject of a divorce settlement include:

  • Cash assets (bank accounts, investment accounts)
  • Real estate
  • Automobiles, motorcycles & boats
  • Retirement accounts, funds & benefits
  • Deferred compensation plans, profit sharing plans, stock options & restricted stock
  • Artwork, antiques & collectibles
  • Furniture & other tangible personal property
  • Life insurance policies
  • Closely held business & partnership interests

Property that is classified as marital includes all property acquired by the parties during the marriage. In Virginia, “during the marriage” is defined as: The date of  marriage through the date of separation (the date upon which the parties began living separate and apart, and at which time at least one of the parties intended the separation to be permanent). Please note, however, that the durational criteria, in many other jurisdictions outside of Virginia,  for classifying property as “marital”, extends to the date of divorce (not just separation). It is not uncommon, therefore, for mediation client to choose the date of divorce, as is done so many places outside of Virginia, as the “dividing line” at which property acquired becomes nonmarital.

Property that is classified as nonmarital consists, for the most part, of property acquired by either party:

a)    prior to the marriage;

b)    acquired by gift or inheritance from a third party to one of the spouses, individually (not as a gift to the couple); or

c)    after the date of separation.

            When determining whether a particular set of rules, with regard to the classification, division, and distribution of property, upon divorce, should or should not be applied in a divorce case, most parties will want to consider the following:

  • the totality of their financial circumstances;
  • the history of their family’s finances and any understandings that the parties may have had (implicitly, by action/inaction, and explicitly);
  • the potential effect that differing settlement decisions and proposals may have on other areas of their case (e.g. creating “bad will”, creating “good will”, feeding agitation, encouraging generosity in other areas, etc);
  • the parties’ relative earning power (even though this is not one of the statutory factors to necessarily be considered by a court[1]);
  • emotional attachment to property, such as a closely held business or valuable artwork and antiques (this is usually only up for consideration when there is a fair exchange for other property for which there is not such a strong emotional attachment)

Below are more rules, by way of example, that demonstrate how Virginia courts go about classifying property as marital, nonmarital, or hybrid property.

EXAMPLE #1: Husband has $50,000, all earned prior to the marriage, in an investment account in his name.  When he marries Wife, the two of them open up a joint bank account which they agree is to be the start of their “marital nest egg”, but there is no solid proof of this oral agreement.  Husband then removes $25,000 of his premarital money, from his individual investment account, and puts it into the new joint bank account.

            RESULT:  The court would probably consider the $25,000 in the joint bank account to be marital property by virtue of the doctrine of “transmutation”.  However, to the extent that $25,000 is retraceable to it’s origins as non marital property, and Husband can prove by a preponderance of the evidence that is was not a gift to the marriage (not as difficult, in Virginia, as one might expect), that $25,000 may end up being returned to Husband as his nonmarital property.  (VA Code §20-107.3 (A)(3)(f) & (g) & (h)

EXAMPLE #2:  Husband and Wife own a joint money market account, opened during the marriage, into which they each contribute money on a monthly basis. Wife inherits, in her own name, $10,000 (inherited money is nonmarital).  At that time, the balance in the parties’ joint money market account is $5,000.  Wife deposits her $10,000 inheritance into the joint money market, thereby commingling (a legal term) her nonmarital property with her and Husband’s marital property.

RESULT: The court would probably consider all $15,000 in the joint money market account to be marital property by virtue of the doctrine of “transmutation”.  However, just like in Example #1, above, to the extent that the $10,000 inheritance is retraceable to it’s origins as non marital property, and Wife can prove by a preponderance of the evidence that is was not a gift to the marriage that $10,000 may end up being returned to Wife as her nonmarital property.  (VA Code §20-107.3 (A)(3)).

EXAMPLE #3:  Wife owns a home, in her name alone, prior to the parties’ marriage.  After the parties are married, Husband puts in a new bathroom, with his own hands, a new tile floor in the kitchen, and wallpapers the large family room and foyer.  The house remains titled in Wife’s name.  The parties get a divorce and the husband seeks a portion of the value of the wife’s home.  Husband’s theory is that the home (or at least a percentage of the home) has been transmuted to marital property by virtue of his labor.

            RESULT:  The court may or may not consider Husband’s theory to be be a winning argument depending on three factors:  (1) Did the husband’s personal efforts contribute, directly, to an increase in value of the home?; (2) Were the husband’s personal efforts significant; and (3) Did the husband’s efforts result in substantial appreciation of the home?  (VA Code §20-107.3(A)(1)).  This area of the law is incredibly subjective and very expensive to litigate.  This is where “it depends . . . “ is an attorney’s favorite phrase.

EXAMPLE #4:  Husband has an online stock account when the parties get married, with an approximate value of $100,000 on their wedding day.  Husband spends, from that day forward, during their marriage, approximately 2 hours per week managing his stock portfolio.  It remains titled in his individual name.  No other money is put into that account during the marriage.  All assets traded emanate from Husband’s original (nonmarital) assets.  Over the course of the marriage, the $100,000 grows to $300,000.  The wife claims, in divorce court that, since the increase in value ($200,000) occurred during the marriage, that increase is marital property.

RESULT:  Once again, it depends. The increase in value of nonmarital property, during the marriage, is not usually considered marital property.  However, if the court finds the increase from $100,000 to be substantial (which it probably would) and find the husband’s 2 hours per week managing the stock portfolio to have been a significant amount of effort (which it may or may not), it may consider all $200,000 as marital funds, to be divided and distributed upon divorce.  (VA Code §20-107.3(A)(1)-(3))

EXAMPLE #5:  Husband and Wife marry while husband is on active duty in the U.S. Military.  Husband came into the marriage with a piece of land that he purchased and fully paid for years before he even met Wife.  Husband receives news that he is being deployed to a very dangerous area of the world and he is a bit nervous because he does not have a will and he wants to be sure that there is no probate trouble in case he should die while overseas.  In an effort to protect Wife’s financial interests, he quickly adds her name to the deed and goes off to battle.  Husband doesn’t die, but instead is greeted by Wife upon his return, with divorce papers.  Wife says that the husband put the land into joint tenancy because he loved her and wanted to share everything he had with her, just as they had done with everything else that they owned. Is that jointly titled land now considered marital property?

RESULT:  Probably not, if Husband can prove that he put the land into joint tenancy for estate planning purposes only and that he did not intend to make a gift to the marriage of that land.  It would be a matter of proof and a judge’s final determination as to which party was telling the truth.  (VA Code §20-107.3(A)(1)-(3))/

As you can see, the law is very subjective in this area.  This is why clients, in mediation, often do just as good a job at determining whether property should be classified as marital, nonmarital or hybrid property, as do judges.  They know their own history and what was said, implied, reasoned, and what makes sense considering their family financial history and culture.  They know each other and they know what their hopes and dreams are – or at least what they were before the divorce —  for their children and for each other’s future as they get older.  Attorneys’ fees can sky rocket in this area of the law, as you can imagine, because “donative intent” necessary to show when, in fact, a contribution of nonmarital property to marital property is present is a very tricky area of the law.  It involves defining phrases, such as “substantial effort”, and “significant”, which are hardly quantifiable and, instead, rely on subjective standards and skilled gamesmanship in the courtroom.


[1] For a complete listing of the statutory factors that all Virginia judges must consider when dividing and distributing property upon divorce, see my previous blog article What Virginia Divorce Courts Consider When Dividing Property & Debt (10/13/12))

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.


Divorce Mediator’s Are Focused on One Thing: Settlement

June 11, 2013

Divorce Mediators are trained to assist divorcing clients through the settlement process.  That is all we do — help clients craft fair settlements and write up those settlement terms in clear, legally binding Settlement Agreements. By focusing only on settlement – without the lure and distraction of flashy legal strategies, courtroom drama, and high stakes positional bargaining (often involving your children) – good mediators keep their clients focused on settling their issues, spotting opportunities and moving on with their lives.

I am a Lawyer-Mediator with several years experience in divorce litigation. This type of background allows me, and divorce mediators with similar experience, to bring to life, in real terms, what may happen if the case is not settled in mediation.  For example, 90-95% of divorce cases settle (meaning they do not go to trial). Therefore, doesn’t it make more sense to try to work on settlement first (where you are ultimately headed, anyway), rather than starting the divorce process with an adversarial posture and legal wrangling?  I can tell you, from experience that, in many instances, divorce cases will drag on for months – or even years – and then, on the dawn of trial, after thousands of dollars have already been spent in attorneys’ fees – the case miraculously settles.  The clients are usually worn out and out of money at that point.  Though it shouldn’t get to that point, it is really only the clients that can stop the bleeding, and that is best done by working on settlement first, and using the adversarial system only when necessary.

Lawyer ethics require that lawyers advocate zealously in asserting their client’s position.  This ethical mandate often spins a case out of control when a little bit of thoughtful goal setting and financial planning by the client, with the assistance of a professional mediator, could have avoided expensive and emotionally draining litigation.  Unfortunately, the vast majority of clients are not experienced in what is appropriate and necessary in a divorce case and, therefore, are relying on their attorney to tell them what needs to be done.  The attorney is then stuck between his or her legal mandate to “zealously represent” his or her client, making enough money to pay the huge overhead that many law firms operate under, and doing what is really best for the client in the long run emotionally, financially and for the clients family, as a whole.  Usually, “zealous advocacy” wins out, especially in today’s legal climate where lawyers are suing other lawyers everyday, for malpractice, in the divorce system.

When is it essential to get the Court involved?  Lawyers and judges are usually necessary in cases where there is domestic violence, child abuse, concealment of assets, or an absolute unwillingness or incapacity for a couple to negotiate, even with the assistance of a professional mediator.  But, aside from those circumstances, there is no discernible reason not to try mediation first, before litigation.  Everything is confidential, in mediation, and, if it doesn’t work out, nothing you have said in mediation can ever be used against your interest in a court of law.  You really have nothing to lose but, maybe, a few hundred dollars (versus thousands of dollars, in the types of cases that I usually handle, just for the attorney’s retainer fee).

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Divorce Mediators, in Virginia, are required to be neutral. We do not advocate for either party, but Lawyer-Mediators, like myself, work very hard to ensure that both parties make informed decisions based on the totality of the facts and circumstances presented by their case. Divorce Mediators are permitted to share information, with their clients, in the following areas, where that Mediator has expertise:

  • Divorce law – statutory, case law
  • Divorce trends – local, national
  • Tax implications of divorce (e.g. alimony deduction, capital gains, gift tax laws in relationship to divorce)
  • Retirement funds – Federal law and application, necessary paperwork
  • Military Law as it relates to military retirement and benefits in a divorce situation
  • Federal law as it relates to federal employee’s retirement and benefits in a divorce situation
  • Effect of divorce on children –adjustment, bonding, talking with kids about divorce
  • Effect of divorce on adult children – relationship skills generally, relationship with parents
  • Child support calculations and deviations from those calculations (above and below)
  • Range of custodial care plans and implementation of those plans

Experienced Mediators are also able to share a variety of settlement options that have worked for other divorcing couples who had similar issues.  Mediation is a creative process, but there is no reason to reinvent the wheel if there is a solution out there, already, that can be tailored to the particular clients’ needs.

In mediation, there is usually not much room for old fashioned, strong arm negotiating tactics, such as:

  • An emphasis on the ground of adultery or other behaviorially oriented matters when it comes to settling property disputes;
  • Pushing the envelope to classify money as non marital property (non divisible by Virginia courts) when both parties clearly viewed it as marital property throughout the marriage;
  • Sudden amnesia regarding known underreporting of income by small business owners (for purpose of calculating support);
  • Tying financial issues to matters of custody & visitation; and
  • Involving other family members in the details of the settlement.

Divorce mediators do one thing:  Help clients settle their cases.  We know how to see things from both perspectives and help our clients to do the same.  Spending a little energy trying on the shoes of the other party helps settle cases faster than digging your heels in. Legally trained mediators know what judges can and cannot do, and what a typical settlement looks like in their area of practice.  But, even though good Lawyer-Mediators know what is going on in the Courthouse, the focus, in mediation, is not on the outside world but on what is right for your family and what is best for you.

All Mediations, the way that I practice, have one clear overriding emphasis: To figure out the best way for both parties and the children to be able to live a comfortable, post-divorce life by finding and taking advantage of as many opportunities presented by the couple’s situation as possible. The idea, at the end of a divorce, is to be happier than you were in the marriage.  Why not?  What else do you have if you don’t have that?  Just a divorce, and that is not an acceptable goal for me and is not a goal orientation that I recommend my clients shoot for, either.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator. Robin Graine of Graine Mediation, is a former divorce litigator and has a busy, private divorce mediation practice in Fairfax, Virginia

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.


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