Mediation Lawyer at Long Island Center for Divorce Mediation, Suffolk, County, NY
Fred Klarer

It is strange how events seem to come in threes. In the past six weeks I have seen clients from years ago — one couple from two years ago, one from four years ago, and one from nine years ago. Each couple had begun divorce mediation and then somehow just disappeared. Two couples had finished the mediation process but never finalized one or two issues. One had reviewed the proposed settlement, then never gotten back to me. Each couple now wanted to finish up.

The reasons that they had not finished when they first started the mediation differed, but all had the same basic problem. They just were not willing to confront one major issues.

For one couple it was the visitation schedule. Mom wanted to exclude Dad as much as possible; Dad was not willing to do that. What was their solution? They just waited until all three children were over 18 and no longer subject to custody issues. In the meantime they had used the schedule I had helped them work out and had kept to it. Dad got more time than Mom wanted and less than he wanted. I supposed you might think — so what that they waited to finish things up. I will come back to that in a minute.

One of the other two couples had a problem about the house. Dad wanted to sell it; Mom wanted to stay in it until the children were grown and gone. Again, they just waited it out. Finally, the kids were off to college and Mom was willing to sell. Again, I will come back to this in a minute.

The third couple had a slightly different problem. Mom had custody; Dad didn’t want to be obligated to pay full child support. He was will to pay the amount based on the standard formula — just didn’t want to put it in writing. He was afraid of losing his job and being stuck with child support payments he could not make. In fact, he went ahead and paid the formula amount voluntarily for a while, but slowly but surely stopped paying. Mom didn’t do anything about it. So what is the problem?

The problems that happened by waiting are these. The first couple had lived their lives as if they were divorced. Now, when they are getting ready to make it official, Dad was in for a surprise. As far as he was concerned he had been divorced. Now he was getting ready to retire from the NYPD and was very surprised when his wife insisted she wanted her full share of the pension, right through until the date they were officially divorced in the future. They were still married, so why should she take less? Dad kept saying — you’re my ex; we have been separated for four years — you don’t get that part of my pension. Unfortunately for Dad Mom was determined, and she was correct. Whether you live together or not, married is married. Just because you feel like you are divorced doesn’t mean that you are. Mom was still entitled to a portion of the pension even thought they did not live together and, in fact, they lived completely separate lives. Dad could have kept a lot more of hisĀ  pension if he had confronted the visitation issue at the time.

The couple with the house issue had a similar problem, but in reverse. Mom had been paying the mortgage all those years; Dad had been paying her child support according to the standard formula. Now Mom was claiming that she should get credit for every monthly payment she made on the house mortgage — on that basis Dad would get nothing. Dad’s point of view was that he had been paying child support, which paid the mortgage, so she shouldn’t get any credit at all. In fact, they were both partially correct. Mom should get a credit for the amount by which she reduced the principal balance of the mortgage — in this case not much — and Dad still gets his 50% of the net value of the house, after credit to Mom for the mortgage reduction. Mom was really surprised, but that is how it works.

The third couple had, in some ways, the biggest issue. Mom wanted all the back child support that she had not received — quite a bit of money. The problem was that she did not have a court order directing her husband to pay child support. You cannot get child support that you never had a legal right to receive. She was out of luck, as he was not about to pay voluntarily. If she had had a signed agreement, or at least a Family Court order she could have collected. Without that, she was just out of luck.

Candidly, these are typical cases. Don’t think that, just because you think of yourself as divorced, you are. Don’t think that your separated husband or wife will just agree to whatever you thought you had agreed to years ago but never bothered to get in writing or a court order. People change. People’s lives change. Better to get it all set when you are ready to end the marriage than to bet on your former partner’s good will.