We're Separating- How Do We Decide Who Gets What?!

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Along with a parenting plan, property division is the other area where much of mediation time is spent.  Questions abound in this area.  How do we decide who gets what?  Do we just split it 50/50?  What am I entitled to?

The answers, of course, are different depending on your specific situation.  Although it is important to know your legal rights and what you are entitled to, the beauty of mediation is that it is flexible and you and your ex-partner get to decide the final outcome.  And that may be very different than what you are entitled to.  Sometimes what we are entitled to isn’t what we actually want. 

But to give you a basis for your decisions I’ll fill you in on the general guidelines for property division.  Remember!  This is the general overview and your situation may be different.  There can be grey areas in property division and legal advice may be helpful so that you are making informed decisions.

Family Property

This typically includes property that existed at the beginning of the marriage or common-law relationship, regardless of whose name it is in.  It also includes property acquired during the span of the marriage to, typically, the date of separation.

Family property generally includes things like (this is not an exhaustive list):

·      the family’s primary home

·      other real estate (cottages, investment properties etc.)

·      vehicles

·      recreation vehicles (boats, RV’s etc.)

·      timeshares

·      airline points

·      furniture

·      antiques

·      collections

·      money in bank accounts

·      retirement savings plans

·      non-retirement investments (mutual funds, stocks, bonds etc.)

·      life insurance cash value

·      stock options

·      businesses

Excluded Property

This typically includes:

·      gifts or inheritances given to one spouse and kept in that spouse’s separate name

·      personal items (clothing, sports equipment, inexpensive jewellery etc.)

·      family heirlooms

·      property that has been protected by means of a pre-nuptial, post-nuptial or co-habitation agreement

Excluded Property can become a grey area and can become Family Property depending on how the property was treated during the marriage or common-law relationship.

How to Divide Your Property

Many people think you just add it all up and divide it so that each person gets assets equal to 50% of the total.  While 50/50 may be a place to start it is likely not where you’ll end.  You want your division to be “fair and equitable.”  This means that although it may not be equal in terms of present dollar amount, over the long term, it is equitable.

For example, if one spouse takes the house and the vehicles and the other spouse takes all of the investments, on paper the numbers may appear equal.  However, over the long term, the spouse who took all of the investments is more likely to come out way ahead of the other spouse.  This is because, although the house may appreciate there is also a cost to keeping the house.  And of course, we all know cars don’t appreciate. 

Another thing to consider is future potential income.  If one spouse has always been at home and the other has worked you will want to consider the long term earning potential for each person when you are dividing assets.

So you could start with 50/50 and then start to analyze the impact of that division in the long-term and start to make adjustments.

The goal is to be fair and equitable because that is not only in your best interest it is in your children’s best interest to live in two households that have a similar quality of life.

Valuation

What is it all worth? As you can imagine, the value of various property can be a big point of contention.  Sometimes couples can easily agree on amounts for various items.  But the house, often the biggest asset, can commonly be a roadblock.  If that is the case, and you cannot agree on a value, then it is best to seek out objective information.  This can come from a realtor or an appraiser that you have both agreed on.  For finances you generally take the value of those assets on the date of separation.  Pensions can be more difficult and may take more work to determine how to handle them.  Things like furniture often don’t come into play when adding up assets.  Couples often just divvy them up or sell them and are done with it.  However, if you want to include your furniture as an asset, unless it is an antique or a particularly unique piece, you generally value each piece by what you could get for it at a yard sale or on a used online market.  Although you paid $2000 for your sofa, it’s probably only worth a few hundred used.

Benefits of Mediation in Division of Property

As I mentioned, it is important to know your rights and what you are entitled to so that you are making informed decisions.  But it’s not uncommon that what you are entitled to is not what you actually want.  In mediation the two of you have all the control and power to make decisions that make sense for you, your situation and your kids.  It’s all in your hands.  My job, as your mediator, is to help you work your way through those, sometimes difficult and emotional, discussions so you can get to an agreement.

Have questions?  Feel free to get in touch, I’m happy to answer them.

-author, Lori Frank

Content is for informational purposes only and is not intended to be construed as legal advice or advice about your specific situation.

Back to School & Co-Parenting

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Back to school – the real new year begins.  Often, for parents, it is a bittersweet time.  We are saying goodbye to the more carefree days of summer but also secretly yearning for the structure and routine that September can bring.

There is a lot to do and a lot to navigate when it comes to your children and school.  For parents who are separated or divorced there can be an added layer of complexity to the situation.

Everything from transferring backpacks, sports equipment and science projects back and forth between two homes to what to do when it’s time to schedule “meet the teacher night” can be a source for tension and disagreements.

So, how can you make this big transition smoother for everyone involved?  Here are some tips to help get you and your children back to school with confidence.

1.     Use a co-parenting app.  Communication is usually the biggest challenge for parents who are separated or divorced.  A co-parenting app allows you to communicate about all things kid-related while minimizing the chances for miscommunication or lack of communication.  One of the best features is a shared calendar.  Everyone can be on the same page for homework, activities and events. 

2.     Bring your child’s teacher into the loop.  Let your child’s teacher know the situation and communicate with them when your child is going through difficult.  Don’t misconstrue this as an opportunity to speak ill of your ex with the teacher.  Keep the conversation about your child and how their teacher can best support them.

3.     Show up.  If your child is participating in a soccer game or the school play, be there, even if you have to sit at opposite sides of the auditorium.  Your child will remember that you showed up for the important events in their life.  And when you’re young it’s ALL important. 

4.     Stay informed.  Make sure your school has both of you on their newsletter list.  Ask for two copies of report cards.  Ask the teacher to cc you both on any emails.  When you were together one or the other of you probably took the lead in this department.  Now that you are separated be proactive and rely on yourself to make sure you know what’s going on in your child’s life.

5.     Contribute.  Whether it’s paying your share of the back to school supplies or helping to make the dreaded erupting volcano science project, do your part.  Your child is noticing your contributions to their life.  Time and engagement is the most valuable contribution you can make. 

6.     Revisit your co-parenting separation agreement.  This will continue to guide you in times of conflict.  As your children get older be sure to amend your agreement to address the changes taking place in your life and theirs.

As much as your children are learning in school they are also learning from you as their role models.  Take this opportunity to show them just how grown up you can be.   

Author - Lori Frank

    

What If My Ex-Partner is Completely Irrational and All We Do Is Argue? Can We Still Mediate?

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Yes, you can.  You don’t have to be getting along in order to choose mediation for your separation.  In fact, it’s very common that parents who come into mediation are not getting along and are not able to have productive conversations on their own. 

Although you don’t need to be getting along, what a mediator will ask of you is that you are open to coming to the table and having a discussion.  It is the mediator’s role to manage that discussion and all of the emotions that come with it even though you seem to be at an impasse.  Often, couples get stuck on repetitive conversations that rehash past hurts.  The mediator will help you move forward from the fighting and begin to focus on the “what next.”  The mediator will help you to move away from the destructive and hurtful conversations you may have been having into conversations that focus on the future and what is best for your kids.  With the help of the mediator communication often opens up leading to a better understanding of what each other is trying to say. 

Even after mediation, you don’t have to be friends.  But for the sake of your kids, you need to figure out how to get along. 

Ultimately, mediation is helping you to lay the foundation of how you will communicate and best support your kids as you move forward as co-parents.  When you’re a parent you’re in it for the long-haul.  So why not make the journey as enjoyable as possible.

Author - Lori Frank

Elder Mediation Can Prevent Conflict

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Elder Mediation is a process that people are becoming more and more aware of as a valuable and effective way to resolve conflict that can arise in families as parents age.  Unfortunately, what is often missed is that Elder Mediation can be used to prevent conflict.  Lawyers, professionals and families often do not understand this preventative aspect of Elder Mediation.

But wait, let me back up a bit and not assume that you know what Elder Mediation involves.  Elder Mediation is called such because it generally revolves around issues related to aging.  Examples of people who enter into Elder Mediation might be aging parents, their adult children, siblings, care professionals, physicians, hospital staff or organizations that serve elders.  The role of the mediator is to provide a forum for family decision making.  Mediation is private, voluntary and confidential.  The mediator does not give advice, does not take sides and does not judge who is right or wrong.  Mediation is a collaborative process that gives everyone a safe space to be heard and to discuss the issues that are causing stress as families encounter the many changes that take place as parents age.  Of course, the ultimate goal is to resolve conflict that has arisen and come to agreements moving forward.

Resolving family disagreements is what we typically think of when we talk about Elder Mediation.  But there is another, very important function, that Elder Mediation can play in the family life cycle.  It can help to prevent conflict.  Aging is inevitable.  We all know it is going to happen and we all know that it will present challenges and new issues for a family.  So why not get ahead of it?

There are many issues that can be discussed before the crisis of a family feud hits.  An Elder Mediator can help you to identify those issues and then walk you through them one by one with the idea being that you make decisions together during a time of relative peace rather than a time of upheaval.  We all know how well we cope and make decisions when we’re stressed, angry, sad…NOT!  So why do it?  Why not have those discussions and make decisions when you have the time to be thoughtful and intentional about them? 

It’s not to say that no matter when you discuss future plans conflict won’t arise.  I can almost guarantee it will to some degree.  Even the most harmonious families will have disagreements about issues related to aging parents.  But, it won’t be with the same kind of intensity and overwhelm when it is crisis-driven.  You will have a much better chance of success of moving through disagreements when you’re not suddenly faced with issues such as selling the family home, surprises in the will, how will care be paid for, what role does the brother who lives across the country play, where do your parents keep their bank account information and so on and so on. 

If you are in your 40’s your parents are probably in their 70’s and potentially still in relatively good health.  This is the time to have these conversations.  As your parents age their health and cognitive abilities can deteriorate unexpectedly and rapidly.  

Over the last couple of years I have had the chance to sit down with my siblings and parents and start these kinds of conversations.  So far, so good.  We’re laying the groundwork for the potentially more difficult conversations to come as my parents move toward years where they may not be able to participate as fully as they can right now.  It’s not easy thinking ahead to a time when your parents will not be here.  But for you, the adult children, who will still be here, wouldn’t you rather spend your time in a more peaceful co-existence rather than in one where the family has been torn apart by conflict?  Isn’t that what your parents would have wanted for you?   

Lori Frank, Q.Med - Family & Elder Mediation

Disability, Mediation and Capacity

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Just like anyone else, people with disabilities may find themselves in various disagreements or conflicts in their daily life.  These issues may be directly related to their disability or the person may find themselves at a disadvantage because of them.  They may have tenant issues, problems with service providers, financial disputes, family conflicts, disagreements with neighbours, employment issues or difficulties with government services. 

Many people turn to mediators as a way to have a neutral person facilitate a conflict resolution process with the other party.  Unfortunately, it is not uncommon for there to be a misperception or assumption that the mediation process will not work for someone with a disability.  There may be assumptions around capacity, ability to participate and ability understand. 

However, a skilled mediator can make mediation accessible and shape it to fit the person with a disability without compromising their neutrality. 

Accommodation requires the mediator to think ahead and to try and anticipate the ways in which the individual will require adaptions throughout the process.  Someone with mobility impairments may need to be accommodated through changes to the physical space or they may not be able to attend at a traditional office.  Those with visual impairments may require translations into Braille or text to speech technology.  Individuals with hearing impairments may benefit from modified speed and volume of speech or may prefer written or visual communication.  An interpreter may be a helpful addition to the process.  Taking the lead from the individual, the mediator can make adjustments ultimately benefitting both parties with the opportunity to participate effectively in the mediation and resolve their conflict.  

Accommodating those with intellectual disabilities or autism can require more creativity, problem solving, research and training on the part of the mediator.  It may take more time for the mediator to understand the individual and their unique way of expressing and receiving information.  For these individuals, questions around capacity may arise.  Capacity can be such a vague term.  However, in the case of mediation capacity refers to the individual’s readiness to participate. This may be different than legal capacity.  What it really comes down to for the mediator is determining what needs to be done and ensuring the person can fully participate.

In some cases this may mean the individual needs to bring someone with them who can assist them to participate in the process.  In British Columbia this brings up the participation of someone named in a Representation Agreement.  An upcoming article will delve more deeply into the subject of Representation Agreements in mediation.  The simple version of this is that the individual with a disability may need to bring their Representative (often a family member or friend), in order to participate.  This can bring up issues for the other party in that they may then be interacting more with a person with whom they do not have a direct conflict.  The other party may feel there is an imbalance because it may feel like two against one.  Managing perceived or real imbalances between the parties is a key skill a mediator must possess.  All parties must feel safe, heard and understood throughout the process. 

Many positives can come out of mediation for a person with a disability.  It can provide an opportunity to resolve conflict, to learn conflict resolution skills for future use and to help them to take ownership of decisions that affect their life through meaningful participation.  In more general terms, being able to participate effectively in mediation may also contribute to challenging perceptions and assumptions others have or the individual may even hold about themselves.   With experience, research and feedback from others an inclusive process is absolutely realistic.

Get in touch to learn more about how mediation can be an inclusive process for you or someone you support.

lori@lorifrankmediation.com

250-516-4234

Questions to Ask Aging Parents

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 As parents age deeply entrenched family dynamics can come to the forefront.  It is not uncommon for this to be a time for many families where there is tension and conflict between parents and their adult children and also amongst the siblings. 

One of the best ways to prevent or minimize this potential conflict is to start those difficult conversations BEFORE there is a crisis.  When families move into crisis mode there is far more potential for arguments, hurt feelings and long term damage to relationships.

Aging parents have a lifetime of experience making decisions for themselves.  It may be difficult for them to discuss these private matters with you.  They may fear losing control or they want to maintain the appearance that they have it all together.  Be sensitive to this but don’t let it stop you from having these very important discussions. 

In Elder Mediation we find that these kinds of checklists can be really helpful to then bring to a mediator.  It helps the family group to set an agenda and move through each point.  The mediator will be there to assist with struggles in the conversation, conflicts that arise and problem solving that needs to be done.   

Discussing the future with aging parents can be a very emotional time.  Enlisting the help of an Elder Mediator can ease the challenge of difficult conversations.

With that in mind, here is a list of questions to help you get those conversations started.  This checklist will help you to lay the ground work for further conversations and help you to understand what your parents are hoping for as they grow older.  You might want to break up these conversations over a few sessions so that it is not overwhelming.

Living Arrangement

1.     How long would you like to live in your own house? 

2.     What changes need to be made to the house to make it functional and safe for you?

3.     What do you think about staying in the house if you were on your own?

4.     What would you consider to be some signs that it may not be safe to live on your own anymore?

5.     What options have you considered if you were to have a different living arrangement?  What would be the best way of exploring your options? 

Health

1.     What legal documentation do you have in place if health decisions need to be made and you are unable to communicate them?

2.     Have you thought about what kind of medical treatments you may need in the future?  Have you put those wishes in writing?

3.     How are you doing with doctor visits and keeping track of health information or medications? 

4.     How do you feel about being kept alive by more exceptional medical interventions?  Under what circumstances would you want that?  Are your wishes written down?

5.     Would a conversation with your doctor about advanced care planning be helpful?

Legal and Financial

1.     Do you have a will?  Does someone you trust know where it is?  Who should we contact about it?

2.     What have you done for financial planning?  Do you need to know more about this?

3.     What could be done to make banking easier for you?

4.     How are you currently handling paying bills?

5.     What would you like to do if there comes a time when you are not able to manage your finances?

For a free consult on Elder Mediation please get in touch!  

lori@lorifrankmediation.com

250-516-4234