Divorce Lawyers Vs. Divorce Mediators: How They Approach Child Custody

May 26, 2015

istock_000018888305small300Parents who divorce are faced with many decisions about how their children will be cared for post-separation.  Divorce attorneys and divorce mediators have different approaches when helping clients formulate custodial care plans.

Divorce attorneys often focus on:

(1) The type of custody a client wants for him or herself (e.g. sole custody, primary custody); and

(2) Winning that custody for the client through strategic legal maneuvering and traditional bargaining tactics.

Divorce mediators tend to focus on:

(1) Formulating mutually agreeable parenting arrangements that are best suited to the child’s needs; and

(2) Assigning “legal labels” (e.g. primary custody, shared custody) to the the parenting arrangements only after the custody decisions are determined.

 

KEY CONSIDERATIONS FOR CHILD CUSTODY DECISION MAKING

Until parties truly understand how their children will process and handle their parents’ divorce, child custody decisions need to be approached with great caution and sensitivity to the child’s basic need for:

(1) affection from both parents;

(2) bonding time with both parents;

(3) enough time to experience both parents’ influence and role modeling;

(4) routine and structure; and

(5) a sense of rootedness (home, school, community).

 

WHY CHOOSE A DIVORCE MEDIATOR?

  •  Child Centered.  Divorce Mediation is child-centered and consists, primarily, of neutral facilitation of parents’ discussions and creative problem solving.  
  • No Games. There are no games or intimidation tactics that are usually employed by divorce lawyers.
  • Confidential. Everything in mediation is confidential.  This allows parents, without the concern of “blowing their legal strategy”, to speak freely and honestly.
  • Everything on the table. Mediation encourages comprehensive conversations about their child and how best to parent him or her in the unsurprisingly complex two-home structure necessitated by divorce.
  • Cooperation. Mediators are skilled at nurturing cooperation between parents.
  • Perspective. In mediation, parents are usually able to see disputed custody issues from various perspectives.  Usually, both parents have good ideas to share.
  • Information & Knowledge. Experienced mediators have practical information and empirical knowledge to help clients make decisions on behalf of their child that both parents are comfortable with.

WHEN IS IT BEST TO CHOOSE A DIVORCE ATTORNEY OVER A DIVORCE MEDIATOR

  • Abuse. Where there is a history of child abuse (physical or sexual) or domestic violence, parties are usually better off having the protection of the Courts and a divorce lawyer right from the start.  
  • Not living in reality.  Parents who are mentally ill or have a personality disorder such that they cannot distinguish reality from fantasy are not good candidates for mediation.  They need a divorce lawyer to advocate on their behalf.
  • Punishment. Parents who are adamant that they want their child’s other parent punished – and believe that the Courts will do that for them (which they almost always do not do) – need to hire a lawyer.  Mediation is not punishment-oriented.
  • Need to win.  Some parties need to win.  Cooperation and mutually agreeable decision-making is not for everyone.  Parties who believe they are dead “right” with regard to what is best for their child in every way, and that the other parent is “wrong” on those matters, need to hire a divorce attorney.  Most mediators don’t think in terms of “winning” when it comes to children.

CHOOSING A MEDIATOR STYLE

There are as many styles of mediation as there are mediators.  If you choose mediation as your method of determining the parenting arrangements for your child post separation/divorce, make sure you are comfortable with the mediator’s approach and style.  Talk with him or her a while before committing to your first mediation session.  Ask questions.  A good mediator will be happy to ensure that both parents are comfortable with the process and that the personalities make a good fit before setting the first session date.

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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How Divorce Affects Adolescent Children

November 18, 2014

Getting divorced is difficult. Getting divorced when you have teenagers… Well, it can feel impossible. Luckily, a lot of very smart people have said a lot of incredibly useful things to help you navigate these tricky situations. A must-read is by Carl Pickhardt, a psychologist and writer, entitled “Surviving Your (Child’s) Adolescence.”unhappy teen

He starts by describing the difference between the way a child who is under 9-years-old and a child who is 9 or older reacts to the divorce of their parents. While the younger child will tend to cling and show anxiety, the older child begins manifesting signs of independence and pulling away. Since it is already typical for an adolescent to test their independence, this confluence can be destructive, rather than developmentally beneficial for the child.

Pickhardt runs down the ways in which a divorce can affect the adolescent. They can put off committing to their own relationships, or keep things overly casual, in order to forego the same pain they saw in their parents’ relationship. It can make them uncertain about their own feelings toward a romantic partner, if their new frame of reference becomes, “Well, I thought my parents loved each other, but now I’m not sure.”

To avoid these mires and pitfalls, Pickhardt suggests what he calls “The Ten Articles of Consideration;” a list of ways that parents can interact positively with their adolescent children and assure them of their continued love, devotion, and foster trust. I highly recommend you check it out for yourself, especially if these problems sound all too familiar. As always, Fairfax Divorce Blog will be here to continue giving our own advice and pointing out helpful articles whenever we find them!

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.


How to Get Started in Divorce Mediation

November 11, 2014

phoneAre you considering mediation for your divorce, but don’t know how to get started? Don’t worry. It’s not a difficult process. At Graine Mediation, we start with an Intake Phone call: (571) 220-1998. We are usually able to help you start feeling better about settling your divorce case with that first call.

Before Graine Mediation takes on a new client, we require Intake Phone Calls with both parties. These initial calls are free. They last approximately 20 minutes each. Clients are encouraged to ask the mediator, Robin Graine, as many questions as they have.

The Intake Calls are confidential, which helps clients relax and be able to discuss difficult issues without fear of anything being repeated to the other party. Not only that, but by having the phone call in their own home or environment, free of charge, clients feel comfortable both in their environment and in the fact that they are not being charged by the minute! Our firm believes in generous Intake Phone Calls because it helps to ensure that our potential clients truly wish to mediate, and understand what mediation is. Also, it is part of our job to assess whether mediation is the best fit for each family’s unique circumstances and, if not, to make a more appropriate referral.

During the Intake Phone Call, I enable clients to:

  •    Tell their story;
  •    Sift through the facts of the case and begin formulating clear issues to be resolved;
  •    Focus in on their needs and, if it helps, the needs of the other party;
  •    Formulate clear ideas about what is best for their children (if they have children);
  •    Gather information and answer important questions;
  •    Discuss tasks outside of mediation that may be necessary in order to settle the case; and
  •    Discuss the strengths and weakness of various settlement options (which include everything from the tax implications to the emotional fall-out possible to children and parents).

This call also helps us at Graine Mediation do our job more efficiently. With an idea of the facts and issues in a case, as both parties see them — legal, financial, emotional – we are able to move forward much more quickly in the settlement process than would otherwise be the case. The parties, too, tend to be more goal-oriented and are in a better position in terms of helpful legal, financial, tax and parenting information.

If you have been considering divorce or custody mediation, but just don’t know where or how to start, give us a call at (571) 220-1998. We can help determine whether mediation is right for your situation, or at least get you pointed in the right direction.

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.


How To Turn Break-Up Stress Into A Meditative Experience

October 14, 2014

Have you ever heard someone say, “I am so stressed out–I’m in the middle of a nasty break-up/separation/divorce”? Maybe you were the one who said it. It’s a reasonable way to feel. There’s so much to consider when ending a relationship, especially one with the legal trappings marriage entails, that it gets overwhelming very quickly. How are the children coping? How are we splitting the house, the bank accounts, the business? Will I still be insured under my ex-partner’s policy? What about my benefits? The list of questions is very close to endless.

Now, have you ever heard someone say, “I’m in the middle of a nasty break-up/separation/divorce–I find it very relaxing”? If you did, you’d probably assume they were being sarcastic. While that statement tends toward hyperbole, know that you really can find something freeing and perhaps even relaxing about the process. It’s all a matter of perspective.

zenFirst, know that no two break-ups are the same. There is no formula that divorce lawyers or mediators can apply to a couple and achieve the same result every time. That means that there are no absolutes, no set-paths, no “perfect” divorces. Once you begin to understand that such a large life transition can’t ever be “perfect,” you can free yourself from the burden of trying to attain that perfection.

Second, realize that life transitions are dynamic and fluid by nature. It can often feel like you are constantly struggling just to keep up, but consider a river. If you try to fight the force of the current by obsessing over all of the inherent problems within a transition, you will quickly tire and drown. But give yourself over to the flow of the river, know that things will–and should–change, and you may find yourself floating lazily before you realize what has happened.

The next time you begin to feel overwhelmed by the flurry of activity and upheaval your break-up is causing, take a step back. Consider the necessity of the movement that keeps you from sputtering to a standstill. Remember that movement means progress. When you give up perfection and give into the transition, you may be surprised where life floats you to next.

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.


How to Stay Married for 64 Years

June 24, 2014

Source of Information & Advice: Interview of My 92 Year Old Neighbor

Several months ago I had the pleasure of interviewing a very lovely senior member of my community, Amelia Kalinowski. Having lived for92 years – and being married for 64 of those years – I knew Amelia had a thing or two to teach me and my readers about life, love and marriage. Boy, was I right! Though Amelia and I may not have been on the same page with all of her advice, she said over and over again “and that was how it was”. In other words, Amelia’s perspective and advice is based on a time when social rules were simpler and most people were more than willing to follow them. But depending on your perspective, much of Amelia Kalinowski’s advice is still very much applicable today. And, most important, Amelia’s methods of keeping a marriage solid certainly worked for her – for 64 years!

Our interview centered around the techniques, philosophies and methods that Amelia used during her marriage to her husband, Stanley, which lasted longer than most of my divorce clients and myself have even been alive! Specifically, I wanted to know:

  • Did Amelia find life-satisfaction and happiness as a result of being married to the same person for 64 years?
  • Did Amelia believe that her 64-year marriage was a match made in heaven?
  • Did Amelia attribute her nuptial longevity to hard work?
  • Did Amelia attribute her long marriage to a tenacious dedication to the belief that marriage is forever (as a result of her religion, or otherwise)?
  • Are there other secrets or, perhaps, a magical formula, that Amelia applied to her marriage that might help the rest of us?

Preliminaries of Interview: What is “Blogging”?

Amelia and I started our interview with a tutorial on “what is blogging?” This was followed by a short-session on how my laptop works . . . followed by an even shorter session on how the internet works (since I really have no idea). I asked Amelia’s permission to publish her wisdom, her stories and her advice on this blog and she obliged with pleasure. “I have nothing to hide!” she said. I got the impression, when interviewing this lovely woman, that she saw my blog article as one way of memorializing her husband, Stanley, who had recently passed away only a matter of months prior to my interview. I hope you enjoy reading this article as much as I enjoyed my time interviewing Amelia Kalinowski.

Where You Come From Has Bearing On Who You Become

Amelia found it very important to give me some background on her and Stanley’s lives before they got married. This led to a very interesting historical journey through life in upstate New York in the 20’s, 30’s and 40’s, and helped me understand and appreciate where Amelia’s beliefs, convictions, and methods came from. I have printed Amelia’s anecdotes because, as I have learned through my practice, people’s histories often have a great bearing on the success or failure of their marriage . . . including whether or not their parents were divorced (which was not a topic of my interview; but, which I know to be true), the values they were raised with, and their perception of the world.

“People’s histories often have a great bearing on the success or failure of their marriage. This includes whether or not their parents were divorced, the values they were raised with, and their perception of the world.”

Amelia’s Childhood

Amelia Kalinowski née Jaros was born in 1923. She was a first generation American-born little girl with Polish immigrant parents. Amelia did not grow up with much at all in terms of material possessions. Nonetheless, her family was grateful to be in America after having endured a hard scrabble life in Russian-controlled Poland.

The family originally settled in Niagara Falls, New York, along with many other   Polish immigrant families. Eventually, young Amelia moved to Buffalo, New York, where she ended up spending the majority of her life. Her father, who was literate only in Polish, worked at a factory weighing and grinding bones into animal feed. This was a tough, dirty job that polluted the lungs of the workers, with Amelia’s father being no exception. Her mother, in addition to being primarily responsible for the care of the children and home life, also worked hard as a cleaning lady. Though she never learned to read or write, Amelia’s mother was smart and believed in encouraging all of her children to be successful and productive in this new country of opportunity.

Amelia had three brothers. Two out of the three eventually married. The third brother, just a year older than her, never married and, as was customary at the time, stayed on at the family home. She also had a big sister. Amelia was the baby of this family of five children. As kids, they all went to public school and also attended half-day Polish Catholic School. Like a lot of families, both then and now, hide-and-seek was a favorite pastime. Amelia was not shy to tell me, though, that beer and moonshine drinking (at least for the boys) was quick to replace hide-and-seek in their teenage years. This carousing, however, was never permitted to get in the way of the boys working for the Civilian Conservation Corps, building parks and sewers, during the Depression years. Despite their hard work, the love, and the support of a big family, life was pretty hard for Amelia’s family and for the other immigrant families in pre-World War II New York State.

As a result of the challenging life conditions, Amelia told me that “there just wasn’t divorce.” As she clearly stated, “More kids, less divorce”. From my perspective, I found it interesting that Amelia never mentioned, in our interview, the prohibition against divorce by the Catholic Church. This never came up. Instead, she focused on the fact that divorce was such a mess for families that most people simply did not consider it an option. “You had to learn to get along.”

I got to wondering, then, if our high divorce rate these days is really just one of the many ugly consequences of our wealth and privilege, much like pollution, clinical depression, and heart disease.  People today do not “have to learn to get along”. We can operate as individuals due to our economics. . . and we even have a term for how this is accomplished when there are children involved: “co-parenting”. Too bad we all aren’t clever enough to learn to live the good life, but without half of our American families splitting apart as a result.

During the Great Depression, “ . . . divorce was simply never seen as an option.” I got to wondering then, if our high divorce rate, these days, is really just one of the many ugly consequences of our wealth and privilege, much like pollution, clinical depression and heart disease?

Stanley’s Childhood

Amelia spent a good portion of our interview, too, talking about her husband’s childhood. Amelia’s husband, Stanley Kalinowski’s, upbringing was similar to Amelia’s, but with one great exception: He lost both his mother and father when he and his siblings were just teenagers. Instead of this tragedy tearing them apart (as it often does), the Kalinowski children were galvanized by this loss and made a conscious determination to “stick together like glue”.

This orphaned group of adolescents pooled together all of their resources (which wasn’t much) together and, as unbelievable as it sounds, were able to purchase a home big enough for all of them to live in. Stanley’s oldest sister, Florence, who was just 16 years old, became the head of the house. The siblings took care of each other and they all pitched in to keep the home going. They all had chores, overseen by Florence, and their primary method of making money was working at a nuts and bolts factory down the road from their home.

Unfortunately, one of the Kalinowski children, Valeria, the youngest, died around age 20. The rest of them—Al, Stanley, and Eleanor—thrived under Florence’s supervision and each of them took part in serving their country in World World II. Following his tour of duty, Florence saw to it that Stanley entered and completed college at Canisius.

Stan and Amy on their honeymoon.

Stan and Amy on their honeymoon.

Getting Married

Not long after the war, Amelia met her husband-to-be, Stanley. She and a girlfriend had taken a bus from Buffalo to North Tonawanda, New York where, as Amelia told me “ the fun was!” Amelia described North Tonawanda as “a big bar town that even had a Whirlitzer Jukebox factory!” Upon reaching their destination, the Buffalo girls headed to a bar/dining establishment where, they knew, the young men tended to hang out in the drinking area. The young ladies all tended to stay in the dining room. Of course, the young men all had a good view into the dining room, from the bar, where they could see the young women preen and giggle. It was a soft “bar scene” in North Tonawanda.

Amelia married Stanley in 1949. She was 28, and he was 31. This was pretty late-in-life for a marriage, back then, but the war delayed a lot of people’s nuptials. Amelia made it very clear to me that she and her husband did not engage in intimacies (with each other or anyone else) until they were married. Amelia felt this was a form of respect that people showed for themselves and for their future spouse. There was no question in her mind but that starting a marriage and then starting a sex life – in that order – was the best way to go about this aspect of life. She also let me know that this long since departed social norm used to considered part of the basic foundation necessary for a happy marriage.

Amelia, and others like her, have pretty much “seen it all” in terms of human behavior and relationships.   Like so many elderly people, Amelia Kalinowski had a plethora of good advice, a broad perspective, and the type of wisdom that comes only from having been around a long time.

Here is Amelia Kalinowski – at 92 years old and having been a wife for 64 of those years – and her advice for staying married and being happy:

Amy and Stan with their three daughters, Kathy, Lizzie, and Val.

Amy and Stan with their three daughters, Kathy, Lizzie, and Val.

Amelia’s Recipe for a Long Marriage:

  • Give and take. No one should ever expect to win every argument, be right all the time, or always get his or her way. “If you don’t know how to ‘give and take’,” Amelia told me, “You have a problem!”
  • Always make up after a fight. Amelia let me know that she had a pretty wicked temper when she was younger. She didn’t always fight fair and, as a result, often had to apologize for both her behavior and for whatever the fight was about. Amelia believes that couples should always make up after a fight and that it really doesn’t matter whose fault the fight was; someone always needs to start off with an apology.
  • Husbands need to feel that they are in charge. Amelia believes that most men need to think that they are the boss. Though many women don’t like this idea, Amelia thinks that letting someone feel that they are the boss is not the same as them actually being the boss.
  • Women need to do the lion’s share of mending relationships. Amelia told me that, as far as she is concerned, men do not forget being wronged. Ever. They tend to stay mad. This is true even when they don’t show it. Women, on the other hand, have a better capacity to forgive, forget and move on. Thus, women need to be vigilant in moving a couple beyond their skirmishes. This is done with apologies and an orientation toward focusing on what really matters in the long run.
  • Women need to be in charge of their family’s emotional well-being. Men tend to run from all things emotional, according to Amelia. Women tend to be much more comfortable with the emotional ups and downs of everyday life as well as the emotions surrounding life’s big events. If you want emotionally balanced children, therefore, the woman needs to be in charge of the family’s emotional well-being.
  • The husband and wife each need their jobs clearly delineated. Every area of a family’s life needs a chief-in-charge. Both spouses may participate, to a certain extent, but everyone needs to be clear about who is ultimately in charge/has primary responsibility. These areas include: disciplining of the children, religious upbringing, making the money, housework, yardwork, social scheduling, etc.
  • Having high expectations of your spouse and children is a good thing. People tend to rise to the level of what is expected of them. Make your expectations clear and don’t spend a lot of time discussing those expectations.
  • Children need discipline. In order for there to be peace in the home, discipline is important. Marriages to do not thrive where the children are undisciplined.
  • Physical violence is never acceptable.
  • Do whatever it takes to move beyond anger. The longer you stay angry, the harder it is to get out of that mode – and the more miserable you will be, your spouse will be, and your children will be.

“If you don’t know how to ‘give and take’,” Amelia told me, “You have a problem!”

What happily ever after really looks like.

What happily ever after really looks like.

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.


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.


Child Support Calculation in Virginia – Rebutting the Guideline’s Amount

April 8, 2014

moneyIn Virginia, the Child Support Guideline amounts come from a table which is set forth in the Virginia Code §20-108.2. That Guideline’s Table dictates the “presumptive amount” of child support to be paid in various situations. (See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-108.2) That child support obligation (a single dollar amount that Virginia says your child will need in order to “make it” in the world based on his/her parents’ financial status) is then divided up between the parents, based on their percentage share of income produced and, in certain situations (see last bullet point below), the amount of time that the child spends with each parent. The parent that earns the most money is usually the parent who ends up actually paying child support to the other parent (though not always, depending on the custody share arrangements).

To calculate the presumptive amount of child support, you need the following information (which become the variables for the calculation):

  • gross monthly income for both parents (usually pretty simple except in cases of small business owners and sales professionals);
  • the actual cost of health insurance for the child (not the entire family);
  • the costs of work related childcare (though this is often factored outside of the calculation);
  • and, in cases where the child spends greater than 90 days (24 hour periods) with the non-primary parent (which also includes 50/50 custody cases), the number of days the child spends with each parent per year;
  • and, in cases where there is also a spousal support obligation, that amount, too, is usually put into the calculation.

The best way to calculate child support is with a professional – a divorce mediator or attorney. Unfortunately, most clients leave out key information or miss a variable when they try and figure their own child support amount with online calculators. At least, that has been my experience. It’s never a bad idea to get some preliminary numbers, but a professional should really assist before you get committed to (or get upset by!) a child support amount.

Once the parties agree/the judge determines what the correct variables are to run a Virginia Child Support Calculation (i.e. gross incomes, cost of health insurance, etc.), the amount calculated is presumed to be correct. However, in certain situations, a parent(s) does not agree with that number – and therein lies a big problem.

A battle over whether or not to apply the presumed child support amount in a Virginia divorce – whether in terms of ratcheting that number above guidelines or pushing it below guidelines – is one of the areas where the flexibility and low cost of divorce mediation should be considered. The “legalese” for this modification of the presumed guideline’s child support number is “deviation.”

Anyone considering deviating from the Virginia child support guidelines amount (especially if that parent is seeking a below-guideline’s number) needs to be aware that courts tend to like formulas. That means that if you do not think that the Virginia guideline’s calculation suits your family’s needs best, you will need to prove it. That means evidence. And that means lawyers and big money (if you choose to litigate instead of mediate).

Further, judges who follow the letter of the law must be very particular about the details of the evidence presented. Child-related matters are highly sensitive – and no judge wants to deny a child the basic support that is presumed needed (at least as far as the Virginia General Assembly is concerned) for anything less than a very, very good reason. (It is notable that the receipt of child support is the child’s right and not the custodial parent’s right. So, technically, even the custodial parent does not have the right to waive child support/agree to a below guideline’s amount of child support on his/her own since it is not that parent’s right to waive the child’s right to financial support!)

Courts are required to abide by the following protocol and criteria if and when there is a request by a parent to deviate from the Virginia Child Support Guideline’s Presumed Amount (pursuant to §20-108.1 of the Virginia Code):

The Court must make written findings that:

A. The application of the guidelines would be unjust or inappropriate in a particular case; and

B. There is justification as to why the child support obligation ordered by the court varies from the presumed guideline amount based on relevant evidence pertaining to: The ability of each party to provide child support and the best interests of the child, as follows:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody of the children, including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential;

4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;

5. Debts of either party arising during the marriage for the benefit of the child;

6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

8. Any special needs of a child resulting from any physical, emotional, or medical condition;

9. Independent financial resources of the child or children;

10. Standard of living for the child or children established during the marriage;

11. Earning capacity, obligations, financial resources, and special needs of each parent;

12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;

13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;

14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

15. Such other factors as are necessary to consider the equities for the parents and children.

At Graine Mediation, we follow similar protocol to the courts when clients are considering a deviation from the Virginia Child Support Guidelines. However, in the Fairfax and Northern Virginia area – where lifestyles tend be quite expensive in terms of the stepped-up extracurricular activities, tutoring, overnight camps, etc. that children are involved in – there is rarely a case where a below-guideline’s child support obligation is agreed to by parents in mediation. (Remember: The guidelines were developed by the Virginia General Assembly for state-wide application – and most Fairfax/Northern Virginia families do not live the lifestyle or raise their children, in terms of dollars spent, like most of the families in other parts of Virginia.) Thus, below-guidelines agreements are rare in my mediation practice. However, above-guidelines deviations are often discussed but, even then, obligating parents to above-guidelines monthly child support amounts are often disregarded in favor of other more practical and creative solutions to award the support necessary while, at the same time, satisfying (as much as possible) each parents’ need for financial stability and control.

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.


Conscious Uncoupling

April 1, 2014

“Conscious Uncoupling” is the new buzzword for celebrity divorces. This is due to Gwenyth Paltrow and Chris Martin’s (lead singer for Coldplay) recent announcement of their pending divorce and the parade of recent of appearances and interviews by Ms. Paltrow and her mentor, Dr. Habib Sadeghi.

Conscious Uncoupling really just means getting a divorce without being nasty. It is code for “compassion”. That is what I help people do every day at www.grainemediation.com.   In Gwenyth Paltrow’s brand of conscious uncoupling, there is a little twist of spirituality, too. Though that doesn’t exist in the secular mediation room, it is completely up to the clients how they choose to put into action their decision and desire to keep the divorce process as free from ugliness as possible.

Graine Mediation applauds these celebrities for setting a good example. The decision to get a divorce is not necessarily a battle cry for both sides to bring out their big guns. Instead, the desire to be consciously as kind as possible throughout the process, while also doing your best to step into each other’s shoes and “see how it feels” and see where the fears lie, is what is always best for human beings. After all, most of us do not thrive on negativity, emotional assaults, and having our pocketbooks emptied by zealot-lawyers.

Divorce is hard enough. The financial repercussions are almost always calamitous and divorce takes a heavy toll on all parties, including the children. If you want to call an amicable divorce “conscious uncoupling,” fine. If you want to stick with “amicable divorce,” that is fine, too. Just see if you can stay out of court and don’t ever go for headline news in your divorce!

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 How-To’s of Online Dating for the Divorced and Middle-Aged Crowd

March 4, 2014

Online dating has almost been talked to death on the internet and the media, but that doesn’t mean everyone is doing it. When you’re divorced and middle-aged, it can seem a bit more harrowing than watching all those kids in their early 20s find a fun, flirty fling with ease online. Whether you’re looking to polish your dating skills after letting them rust in your marriage or seeking the person you’d like to spend your post-divorce life with, online dating may be the best place for you.

When people get back into the dating game, whether post-breakup or divorce, it’s common to ask your friends to set you up. But why ask someone else to do what you could do better yourself? When you date online, it’s easier to find a more lasting connection based on common interests and attraction. When a friend sets you up, they may just be thinking, “Aw, they’d look cute together,” but not about what you really need out of a partner.love-online-dating

So you’re convinced and want to move forward with online dating, but where to even begin? Here’s a short primer of some how-to’s of middle-age online dating.

1. Find the right service for you

            You’ve seen the ads online and on your computer for the big ones—Match, EHarmony, OkCupid, JDate—but there are dozens of dating sites online. How do you choose?

Talk to your friends to see what sites they’ve had luck on. Do some internet research to see what each site is known for. (For example, OkCupid tends to skew younger in its demographic because it’s a free service.) Figure out how much you’re willing to pay to be on a site. Consider using niche dating sites (like VeggieDate, for vegetarians only, or ChristianMingle for Christians) depending on your tastes.

But most of all? Don’t feel like you have to limit yourself to just one. Whether you try them simultaneously, or one after the other, the key to internet dating is broadening the search rather than narrowing your options.

2. Get comfortable with dating again

            After a divorce or a bad breakup, it can be hard to just dive back into the dating pool. If you think you’re going to find your new soul mate on your first date back out, think again. You need time to readjust to the dance of courtship. If someone seems nice, pleasant, attractive, but doesn’t scream “TRUE LOVE MATERIAL,” don’t discount them—date them. First dates are supposed to be low-pressure; use that time to figure out who you are as a dater now. Trust me, it’s probably not going to be the same person as 20 years ago.

One thing to remember when online dating is that you’re all in the same boat. I’ve spoken to plenty of middle-aged people who are worried they’ll look silly by putting themselves out there again. One man I spoke to said his biggest fear was feeling awkward or having nothing to talk about. Another woman mentioned she was worried it was tantamount to marketing herself, and the idea of that felt wrong. The important thing to remember is that you’re not alone! Hell, sometimes it’s good to even speak to your date about these fears. I can guarantee you both have them, and at least it’ll be something to talk about if the silences get a bit too long.

Also, repeat to yourself: It’s just a date. These aren’t lifetime commitments or marriage proposals; it’s a coffee date, a movie, maybe dinner. At the most, it’s a few hours of your life. At the very least, you will come out of that date with some story to tell.

3. Lower your expectations

            No, it’s not as bad as it sounds. What I mean by that is when you’re scrolling through a list of potential dates, you start to feel entitled to being very picky. Ew, he’s a bit short. Oh no, she enjoys Nicholas Sparks novels. Here’s some advice: Get over it. One of the pitfalls of online dating is that we sit in judgment of someone we’ve never even met. Think back to your last long-term relationship. Weren’t there things you found out later that may have turned you off in the beginning? The difference was that you found out later. In online dating, particularly in the middle-aged bracket, people tend to put their cards on the table, figuring that the more honest they are about themselves, the more easily they’ll attract a likeminded partner.

Suspend your disbelief.  Give a person the benefit of the doubt. Try going out with a different personality type. No matter how it turns out, you’ll end up learning something about what you want and about yourself.

4. Take the pressure off

            It’s a huge step to start dating again, but sometimes it can be discouraging to go on a panoply of first dates, but never a second. Don’t be hard on yourself—this is how online dating works. It tends to be a numbers game. If you’re not out there trying, nothing will ever come of it.

People who are taking control of their life are attractive. By deciding to date again and by using online dating sites to help, you’ve grabbed your own destiny and have decided to steer. Other people around you will start to notice. You become more open to new people entering your life, so don’t be surprised if the person you end up with approaches you at a bar or a party. Dating online doesn’t always lead to a match, but it can boost your confidence to the point where someone in your life may see you in a different way. Online dating helps to take the pressure off and when you’re more relaxed and confident, people can tell. It’s a hell of an aphrodisiac!

5. Have fun!

            It’s not oral surgery. It’s not a funeral. It’s a date. All you need in order to have fun is a good, open attitude. Even if the other person is a drag, I promise there is some fun to be had—it’s just up to you to find it!

Written 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.


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