On Undiagnosed Mental Illness and Mediation

“The best way out is always through.”

– Robert Frost

What is mental illness? What is mental instability? Scientists and mental health professionals have grappled with questions concerning the human mind for centuries. From artfully crafted screening questions to wires transferring electrodes to images, we live in a society that tries to unravel why some people act in unfathomable ways. Sometimes we feel we are closer to an answer. But the inevitable anomaly continually sets us back.

In the setting of divorce, we are concerned with identifying an environment that offers an optimal space for a child to flourish. In a litigated process, our system attempts to investigate these environments through forensic evaluations, court ordered investigations into home environments of the parents, supervised visits and other compartmentalized vehicles. One person visits the home of a parent who assumes a requisite, cavalier smile for an afternoon. Another person explores the home of a parent who is absent, balancing two jobs and in no position to tidy. A third person interviews a young child who enthusiastically chatters about the parent who provides more sweets and fewer boundaries. Each of these individuals files a report with the court. Attorneys, equipped only with brief anecdotes told in confidence by their clients and often skewed summaries of opposing party’s positions, advocate for their clients to the best of their abilities. A judge evaluates to the best of his or her ability based on what is presented in court. No one thinks about the gaps that will never be filled.

There is little opportunity in a courtroom to observe the engagement between divorcing spouses without the filter of their attorneys, coaching them on what words to use and how to temporarily temper their habits by polishing the virtual or real image they present to the world at large. There is little opportunity to emote, to communicate freely, to problem-solve constructively and collectively. And there is certainly little opportunity to flag whether an individual is concerned with love of a child, or an unsavory obsession with simply winning a game.

It is true that mediation may not be a feasible process for every couple. It is true that a minimal amount of willingness on both sides is imperative to participating effectively. However, mediation is still one of the few forms of dispute resolution in which certain critical human elements can be brought to light. Click here to read more

Do Court Orders Protect from Violence or Can They Potentially Increase its Threat?

“Litigation: A machine which you go into as a pig and come out of as a sausage.”
– Ambrose Bierce

Do any of you see disturbing patterns in recent news? Patterns where people who, as it turns out later, have mental health issues, end up snapping and committing murder? These patterns are not limited to our country and unfortunately, they are becoming more and more frequent, especially in the area of family disputes.

In September 2013, a man kidnapped his small children in Tel Aviv, Israel, and ended up throwing them off an 11-story building, then taking his own life. That man, whose name was Eli Gur was estranged from his wife. After being found “unfit for duty” and released from the police force, Gur lost his mother and was living with his brother in her house. There was a restraining order in place and he could only visit his children under a social worker’s supervision. However, the court order did not prevent him from storming into his wife’s home, choking her, snatching the children and taking off. Click here to read more.

Mediating Secondary Education in NYC

By Lara Traum (mediator with the Law Firm and Mediation Practice of Alla Roytberg, P.C.)

“He who opens a school door, closes a prison.”
― Victor Hugo

In a city of unique academic options and restrictions, parental decision-making is perhaps the single most significant force that determines a child’s educational path. Unlike the idyllic American dream that depicts a wholesome Brady bunch in a balanced local high school, successfully stumbling through a system of well meaning and artful instructors, the school system in New York City is varied, inconsistent, competitive, and without guarantee.

Just as some kindergarteners spend their afternoons with tutors, preparing for admission into elite elementary school programs, many of New York’s seventh graders spend their summers indoors, drilling for the gamble of the specialized high school’s admissions test. As competition becomes more fierce and programs become more rigorous, more and more parents are finding it necessary to adjust their children’s educational plan. Click here to read more.

Housing Issues for Families – Part 3

The House

When people own a house, their proof of ownership is a deed, and very often in a marriage, the deed states that the house is owned by both husband and the wife together. In New York State, this ownership is called “tenants by the entirety” and it means that if something happens to one of the spouses the house ownership automatically passes to the surviving spouse.

Sometimes, if parties divorce and still want to retain the house jointly in the future, they would switch their ownership from being “tenants by the entirety” to becoming “tenants in common.” A tenancy in common is a basic type of ownership by partners, where if one of the partners passes away, his or her interest gets transferred to his/her individual heirs rather than to the remaining owner. If owners are not married to each other but want the ownership of the house to pass to surviving owners, they would ordinarily state on the deed that their ownership is as “joint tenants with right of survivorship.”

In a separation or divorce, spouses have to explore various options. Click here to read more.

Does Honoring Individuality Help Resolve a Dispute?

By Lara Traum (mediator with the Law Firm and Mediation Practice of Alla Roytberg, P.C.)

“There are men who can think no deeper than a fact” – Albert Einstein.

We live in a world of absolute truths. History, math and science tell us that facts exist, that questions have answers, and that formulas can be applied to resolve many of life’s mysteries. We make firm projections about the future just as we reflect with conviction on the past. We rarely pause to wonder whether the way we experience a situation is indeed that objective – whether the person sitting next to us who has lived on the same block and eaten at the same diner and talked to the same street vendor for the past ten years has experienced the picture entirely differently.

Vantage point is the depth beyond fact that individuates personhood. But what happens when one identity has been enmeshed with another for years? Click here to read more.

Housing Issues For Families – Part 2

Condominiums

A man builds a fine house; and now he has a master, and a task for life; he is to furnish, watch, show it, and keep it in repair, the rest of his days.”

Ralph Waldo Emerson (1803 – 1882)

A condominium is another type of apartment; however, owning a condominium is very different from “owning” a co-op. In a condominium, owners actually own their space as real estate, as opposed to owning shares in the co-op building. They have a deed, the same way you have a deed on a house. When a person owns a condominium apartment, he/she owns whatever is inside the walls/unit and also a proportionate share of the common elements of the building. For example, if there are 4 apartments in the building, the owner would have a deed for their apartment and a 25% interest in the common elements in the building as well.

Just like with the co-op, the building has an offering plan. It has a budget and, depending on its size, they may have a management company and it can borrow money, if needed. Monthly maintenance payments in condominiums are usually called “common charges” and they relate to the unit owner’s proportionate share of the costs needed to run the building. Click here to read more.

Mediating the Multi-Cultural Fugue of Divorce Mediation

Although many of us live in the most multi-cultural State and City in the world, for New York mediators a dispute between participants of unfamiliar cultural, religious and ethnic backgrounds brings unprecedented challenges. In her article on Neuro-Literacy, Pauline Tessler rightly points out that “our clients experience divorce as an extended human transition of operatic dimensions, with emotionally exhausting peaks and valleys involving betrayals, bad faith, and narcissistic wounds that call into question identity, core values, and even the will to survive.”¹ Add to this a mix of centuries’ old beliefs, traditions and rituals, sprinkle it with a committee of advisors, comprised of family, clergy, and community elders, and you get a cacophony of contrasting voices which exacerbate an already looming emotional headache of a human being facing a divorce.  To read more, please click here

Sometimes "It Takes a Careful Village"

 
 

“You rush a miracle man, you get rotten miracles.” - from The Princess Bride (1987 Movie)

 
A recent New York Law Journal article discussed a case that is appearing before the New York State highest court, the Court of Appeals and involves the issue of how Madoff investments impact the divorce and separation process. The task of the Court of Appeals is to decide whether to revisit equitable distribution, where the 50/50 split of assets was predicated on the husband’s retention of funds in a Madoff account. Since the account has turned out to be empty, the husband claims that the division of assets is no longer 50/50 and that it would be equitable for the wife to return part of her share to the husband.

This case provides a prime example of the potential complexity of family disputes. These disputes may be around a separation or a divorce, a will probate and inheritance rights or a family business. They involve many areas of the law, finance, psychology and tax and are often difficult to untangle in view of decades of interpersonal relationships and loose record keeping between the parties. It is critical for all participants, lawyers or not, to understand and utilize other professionals. Divorce, trust and estates and business law attorneys are usually not capable of analyzing a financial problem completely without the help of a financial or tax expert. They can flag the issues, but it is imperative to get the advice of appropriately trained professionals to ensure the results of a settlement end up being fair and equitable in the long run.

For example:

• If one of the spouses has filed a bankruptcy at some point, it may affect the other spouse and the way the property should be divided. Bankruptcy counsel is often brought in on cases like this.
• If the parties own a home and that home is threatened by a foreclosure, they may be considering negotiating a downward modification of a mortgage, or a short sale. If this is the case, they may need to involve an attorney who is experienced in doing short sales to assess their realistic chances of selling it, walking away from the debt and dealing with any tax consequences that may result.

Often, division of property and transfers of property between spouses surrounding separation or divorce, or between family members in general, is replete with possible tax consequences. For example:

• If a husband buys out his wife’s interest in a home, simply calculating the 50% share of net equity in the home may not be an accurate calculation because a certain number of years later, the person who retains the home may then sell it and incur a capital gains’ tax that would, in hindsight, seriously skew, what was expected to have been a 50/50 split in one direction. This is why it is extremely important to go through a “tax impact” analysis before an agreement is finalized and to bring it to a judge’s attention if there is a trial on equitable distribution.

In addition to tax issues, there are issues concerning life insurance and disability insurance, children’s college plans, health insurance and retirement, which may require the input of other professionals. Dividing assets fairly and equitably is a complex matter with possible unintended consequences. It’s really important to reach out to trained professionals to ensure that the intended result is actually being achieved.
 
 
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New York Becomes a "No Fault" Divorce State

“Common sense is the knack of seeing things as they are,
and doing things as they ought to be done.” – C.E. Stowe

Finally, after decades of resistance, New York decided to join the other 49 states and offer a “no-fault” divorce option to those couples who want to simply part ways without having to accuse each other of some type of wrongdoing. It took many, many years to get to this point. Every time there would be a proposed bill to add the “no fault” provision to the law it would be defeated because of the resistance from different types of concerned groups and lobbying efforts. Finally this year, it did pass.

What does “no fault” mean? Before, in order to divorce in New York State you needed to come up with a “fault” ground, which means that one spouse had to accuse the other of something. If you had a couple where both sides were in agreement that they wanted to divorce right away, there was no option such as “irreconcilable differences”, which has existed for decades in other states. The only way couples in New York could divorce without being forced to accuse one another was to execute a separation agreement and then wait a year. They could then assert “living pursuant to the terms of the separation agreement for a year” as a ground for divorce. The new “No Fault” ground allows parties to submit divorce documents to court right away without having to wait a year or having one side accept the blame for wrongdoing.

Why the resistance to “no fault”? Historically, some religious groups resisted it because of their concern that if getting divorced became “too easy” people would not try to make an effort to stay together.

The other groups that were against it were those having to do with domestic violence. These groups advocated for victims of domestic violence, both men and women, though statistically women were more often the victims. The primary concern was that if the husbands had the opportunity to get out of a wrongdoing reason for divorce, they would be able to file very quickly, and then use the spouse’s fear to cheat them out of a claim of financial support or equitable distribution of marital assets. For decades there was resistance based on that, but in recent years, some of the members of the organizations that fight domestic violence, came to realize that the abusers tended to be pretty successful in manipulating the court systems even with the wrongdoing grounds, so that wasn’t really helping the victims.

Thus, finally, as of October 12, 2010 you can get a “No Fault” divorce in New York if, according to either party, the marriage has broken down irretrievably and has been broken down irretrievably for at least six months. This doesn’t mean that the couple has to be actually separated for the six months; they just have to state that the marriage was completely broken down for the past 6 months. Now one side can unilaterally allege that the marriage is irretrievably broken and submit a claim for divorce on the basis of this new ground.

This legislative breakthrough did not come without strings attached, however, and there are many strings. The new law only really helps remove the grounds as an issue in a contested divorce, but couples still have to resolve all of the other issues having to do with the children, with child support, with spousal maintenance, and with division of property. Unless all of these are resolved, they cannot get the divorce. If they cannot reach an agreement on all matters, the issues of custody, child support, spousal support and division of property will still go through the court process, but at least the issue of grounds will not.

All families are "Broken" and then "Blended"

"Marriage customs bring together two people from different lineages and place them under a common roof. By definition, marriage is a joining of unlike elements. Even when the bond is strong, a seam both connects and divides husband, wife and the web of in-laws they bring to the table. A couple’s biological offspring really are a blend, but the rest of the family is patched together."  - Ellen Lupton, "In Praise of the Broken Home", New York Times, August 2, 2010

     Imagine, that in addition to joining the "unlike elements" under a common roof and then blending the family through the birth of several children, this blended family now emigrates to the United States from a country like India, Uzbekistan or Japan and settles in the County of Queens, City and State of New York.

     To complicate matters, the older husband has a hard time mastering the language and his younger wife is able to go to school, get a job and succeed financially.  "Over there" he was an important man, who provided for his family, but "over here" life is different.  As his wife works and becomes more independent, he begins to feel worthless, while his children become Americanized and "disrespectful."  Sounds familiar?

     Unfortunately, such is the plight of many families with strong traditional ties who "uproot" themselves and move to a new country.  The rift between parents and children and husbands and wives widens and the extended family members seem unable to comprehend that sometimes adjustments must be made. "In the old country people did not divorce, the husband managed the money and the wife managed the household.  The children knew 'their place' ".

     One can only imagine the complexity of emotional and cultural issues that such a family must experience if the couple faces a divorce or a separation.   However, divorces happen more and more often and have become a regular fact of life in such courts as Queens County Supreme Court in New York City.  Queens County is the most multi-cultural county in New York State. It brings together and "blends" hundreds of nationalities into a flavorful stew of small neighborhoods, which usually peacefully interact with each other. However, when the family dispute overtakes them, many members of the extended family find fault with the national original of the other party: " I told him not to marry a girl from ____ city, they don't make good wives".. While everyone is looking for a unique reason why a divorce is inevitable, in reality it is often the unfortunate consequence of too much "breaking" and not enough "blending" in a family of recent immigrants.

      In any event, it is imperative to find a culturally sensitive solution for the separating couple and their family, - the type of a solution that would work as they struggle to preserve their national identity and, at the same time, adjust to their new American way of life in a positive way.

On Transformation of a Stressful Marriage into a Separation with Friendship

"Ever has it been that love knows not its own depth
until the hour of separation." - Kahlil Gibran

In a July 30 New York Times Article, entitled "The Un-Divorced", Pamela Paul discusses a phenomenon of long term separation as the alternative of choice to a divorce for a growing number of American couples of all ages. Often, decision to remain legally married is financial - one spouse's eligibility for the other's social security benefits or health insurance may be extinguished by a divorce.

However, for some couples, a long term separation replaces the irritable hostility of daily life with a distant friendship between two people who still care deeply about each other, but simply are unable to co-exist under the same roof. People may remain happily separated for decades until a death or a new old-fashioned romance prompts them to "legally" turn the page and move on.

For those of you who find themselves personally relating to this, please note, that it is absolutely imperative for separated couples to have a legally enforceable separation agreement. Although, by signing such an agreement, you remain eligible for each other's health and other benefits, you can definitively protect yourselves and each other against disasters, that may intervene and are outside of your or your spouse's control. If one of you becomes ill and the insurance is insufficient to cover the bills, the other spouse and his/her assets can be tapped to cover the ailing spouses medical bills. In a Separation Agreement, you can specify that each of you is responsible for his/her own debts and liabilities. You can waive rights to each other's estates, to each other's assets, homes, cars and valuables.

The money spent on a mediator to negotiate and then on lawyers to review and finalize the Separation Agreement is minimal in comparison to the financial exposure each of you would avoid in the future.

Thoughts on Anne Barnard's 02-04-09 New York Times Article "2 Doctors, a Custody Battle and an Execution-Style Killing"

"Those who hate most fervently must have once loved deeply;
those who want to deny the world must have once embraced
what they now set on fire.” --- Kurt Tucholsky"

More than a year ago, lives of people in the peaceful community of Forest Hills, in which I live and practice family law and divorce mediation have been turned upside down. Allegiances are firmly split. You MUST either hate the mother’s family or the father’s family in the glorious tradition of Montagues v. Capulets, Malakovs v. Borukhovs. A father’s life is lost. A mother is on trial for murder. A childhood destroyed.

This horrible drama has defined the dynamics of family disputes in the Bukharian community for the past year and may continue to do so for years to come. As the stories will continue to pour out of newspaper headlines during the next few weeks I invite you to explore the course of the escalation of the Malakov/Borukhova family conflict from a separation to a murder.

Did these parents know that they could choose alternative dispute resolution before coming to court? Did their attorney/judge or anyone who addressed them at the start of litigation, educate them about the existence of divorce mediation? In a close-knit community, consisting primarily of Jewish immigrants from Uzbekistan, the extended family’s role in advising the young and raising grandchildren is critical. Shouldn’t extended families be educated about how family mediation can help resolve custody disputes?