Welcome to Divorce Dialogues. I'm Catherine Miller. Divorce Dialogues brings expert guests to the airways to talk through your divorce questions and fill in the gray areas of that separating. From thinking about divorce, to how to behave during divorce, to what to do after, this is Divorce Dialogues.
Welcome to Dialogue on Divorce. I'm Catherine Miller, and I'm here today with Barbara. Barbara is a person who has been through the divorce process, and actually so am I, and is here to talk to you and with me about what it is to try mediation, what it is to work in mediation, what it is to work with collaborative attorneys, although, Barbara, I don't believe you actually ever had a full collaborative process, and we can talk a little bit about what that means, and then move on to litigation and what that feels like as well. I'm really thrilled to have you here today, to have this opportunity to talk about what that really feels like for a real person, a real you.
Welcome. Thank you. I'm very happy to be here. And so, Barbara, why don't you give us a little bit of your history and what happened and tell us a little bit of your story, and maybe we can just start with that.
Does that make sense? Sure. I worked outside the home for the first seven years of a 20-year marriage. I married later in life.
I was about 40 when we got married. After working during the first seven years of our marriage, I stayed home to care for a child who was suffering from a life-threatening disease to take care of a healthy little girl. Our son passed away when he was seven years old, and we adopted another child. That was obviously incredibly tragic.
It was a very, very difficult journey for us during the early part of our marriage. There's no question about it. That said, I don't think that the difficulties that we had contributed to our decision ultimately to divorce, because we then went another 13 years being married. I'm a social worker, and my ex, who I will refer to as Alan, worked on Wall Street.
So even with that, you can understand how different our worldviews are, and that affected how we approached our divorce. And, you know, it's very common that people, and this may or may not be true for you, but I'm just saying in general, sometimes people are attracted to each other because of a real difference in approach to life, and then that real difference in approach to life becomes more irritating and ultimately divisive in the relationship, and people just have difficulty communicating because they're coming from such a different internal stance to life. And that often contributes to the demise of a marriage, and I see that a lot with the clients that I work with. Oh, I totally agree with that.
I think that I certainly can speak for my attraction to him. He's so good at making money, saving money, investing money. He is very frugal on how he spends money, and, you know, I will totally admit I am not like that at all, you know, and here I am, a social worker. So it wasn't like I came into the marriage with, you know, a lot of assets of my own.
But what I did come in with was probably a more professional approach to how to raise children because of my 20-some-odd years' experience with working with teenage mothers, children with mental health problems. I think that our roles very clearly became defined right from the get-go. I think that our parenting styles were different, but in large part, I was the homemaker even when I was working. I think that he deferred to me on a lot of the decisions about how to raise the children when our son had special ed, you know, needs, medical needs.
I was the one that, you know, made all those decisions. I figured out that there was something wrong with him immediately at birth, and the same was true with both of our other kids. So our roles became very clear, the division of labor became very clear, and I think that we both made some compromises on our approach to money because of the needs of our children. And I think you're talking about a very common situation, a common division of labor, a traditional division of labor, and a very frequent sort of approach to parenting that, you know, one person, very often the mother, will take responsibility sort of for the day-to-day arrangements of life events, right?
And sometimes the dad is more of a sort of special events kind of person and less involved in day-to-day care. And that's often an issue when people come to divorce because each person, you know, sometimes dad wants more involvement. Mom might feel some concern about allowing that because it might not feel safe, and sort of negotiating that transition in a parenting relationship is really sometimes challenging. It is challenging, and I think that even now, almost three years post-divorce, we still face that challenge, but I think we have, again, moved into other roles.
A lot happened between our marriage and our divorce. So fast forward to 2011. We were in counseling. We tried to work on some of the marital problems that we had had really for most of our marriage.
We both agreed that it was better if we divorced. So when we approached our children and told them about our pending divorce, one was in fifth grade, one was in ninth grade. We also both agreed that we were going to use mediation. We interviewed three different mediators, including you, and we decided to choose you as our mediator.
And it turned out that the parenting plan, which we worked on with you, was the most cost-effective, peaceful part of our process. Even though we went into mediation with different ideas about how much parenting time we both wanted, he initially said he wanted a 50-50 split in his parenting time or custody. I'm not sure what the best way to refer to that is. I wanted more of a 70-30 split.
I felt at that point I had not been working for years. When our son became very, very ill, I stayed home full-time, and I had continued that after we adopted a child. So I felt that I was more available, and we, over a few months' time, agreed to a 60-40 split. It was really, even though looking back at it, I think there were parts of it that were very, very difficult.
When I look at the rest of the divorce, that was the easiest part. I just want to say a couple of things. One, I want to say that I just want to disclose to people that I did not ask you to come and be on the show. I asked Catherine.
I'll put it out there to be on the show. I appreciate that. And I really appreciate, though, I think your desire to share your experiences in order to help people educate themselves about what these processes are like. One of the reasons I wanted to be here was I believe that the whole notion of equitable distribution, which we'll get to when we talk about how we work at our division of our finances and asset distribution and child support and the like, is really an evolving and very culturally determined law that I think will change over time as women more often become the moneyed spouse, which is the term, I guess, we use to refer to the person who has brought in more money into the marriage than the other.
And I think that perhaps there needs to be more definition of the distribution of labor, you know, because I'm sure there are plenty of people who are the moneyed spouse and also do a great deal of the parenting. So I just want to say this is Catherine. You're listening to Dialogue on Divorce, 1460 AM, WBOX and on WBOX.com. Also available as a podcast on my website, www.WestchesterFamilyLaw.com and on iTunes.
And I'm talking with Barbara, who is a divorced person who's experienced a number of different methodologies. And before we move on to talking about equitable distribution, I just want to talk about sort of the mediation process. And so I think it's pretty clear from what you just said that you worked in mediation and worked out a parenting plan and then left mediation before you reached a full resolution of all the issues that needed to be resolved in order for you to get divorced. And I've been talking just last week with some people about what it means to have a successful mediation.
And I don't think of mediation necessarily as failures if they don't result in a full resolution. For you, you were able to reach a parenting plan that worked. I totally agree with that. And frankly, I think from speaking with other women and men who have gone through the process, it's not that unusual that mediation works for part of the process and that you need either collaborative attorneys or even litigation for another part of the process because the spouses may be so far apart on what they are willing to compromise on that mediation is not the best avenue for them or that both become very disillusioned and angry.
You know, I think of mediation as a way for people to communicate with a third party in the room, communicating with them. I think of collaboration as having sort of supervised communication with your soon-to-be ex-spouse. In litigation, I think of it as people being told not to communicate. You know, do not talk to your spouse about anything.
We will do the communicating for you. So that's a very, very different process. So Alan and I finished the parenting plan. And what happened was we had review attorneys.
He had a trial attorney as his review attorney. I hired a collaborative attorney. And we discussed why it was that he had a trial attorney. And he didn't feel that there was any need for worrying about what that attorney did because they were just going to review what we did in mediation.
What ended up happening was that his trial attorney then advised him to consider commencement. You probably know. An action. Divorce.
And I was stunned at that, which, you know, was not typical of mediation. You decide in mediation together when you're going to stop the clock on the accumulation of assets. That sort of set the tone for how we were going to ultimately deal with our financial situation and how we were going to divide our assets because I think that he was very definite about what he wanted out of our equitable distribution. Yeah.
So let's just talk a little bit about what equitable distribution is in people terms. And that is a division of your assets and liabilities. So the first thing that you need to do when you're starting to have conversations about equitable distribution in any process is develop a shared understanding of your economic reality. And just so people understand, we talk in the law about the marital estate and dividing up the marital estate.
And what Barbara was talking about is clearly the beginning of the marital estate starts when you get married, unless you have a prenuptial or postnuptial agreement that says something different than that. And I think, Barbara, what you're talking about is sort of closing the definition. When does the marital estate end, the accumulation? So you talked earlier about Alan making a lot of money.
And I think he had a concern. And I'm getting this just from what you're saying, not from my recollection of the time, that his ability to earn over the cost of your lifestyle would then in order to his benefit instead of something to share with you. In an action for divorce, which is something that happens when you commence the divorce action. But typically, when we work in mediation or in collaborative law, we agree on a day prior to that, because usually in mediation and in collaborative, we do not commence an action for divorce until after a separation agreement or settlement agreement is signed.
And so that's what you're talking about. But learning in the middle of the mediation that that divorce action had been commenced without your knowledge or mine, I think what you're saying for you is set the tone for how you were going to be talking about money. And to be fair, since Alan isn't here, to give his point of view, early on, I talked about that there are such different ideas about what people think is equitable distribution. It seems to me that this has sort of evolved, and I may be wrong, you can correct me in terms of the history of New York or this country, that because it was often women who stayed at home and gave up, you know, the idea of a career outside of the home, that at the end of marriages, women were often left, in some cases, in poverty, and the law did not protect them.
And men were more likely, given the economic climate, to be able to go on and do pretty well. So it's true. Up until the early 80s, when the new equitable distribution law was passed and enacted into law, we divided assets, and this is before my practice in here, so I'm not an expert on this. It went by title.
The assets went with the title party, and that was usually the man. And that obviously stems in history. There were times in our country's history when women were not allowed to own property. And again, I'm not Alan, but my sense was, and this was all during our marriage, that because we had such a division of roles, because he was the one who was getting up at 5 a.m.
in the morning and working very late at night and working hard to bring home a lot of money, that he also had a lot more decision-making around the money. Once the marriage was being dissolved, I think he really came to feel that this was more his money. And that's why I think that when we look at every marriage as being very different and a very different economic partnership, which is how the law, I think, views equitable distribution as to think of marriage as an economic partnership, that it doesn't even come down to how much do you need to live? You know, how much does each person need to live?
Or even what is necessarily fair? There is a sense that it's really close to 50-50, that the money that was brought into the marriage, you know, is as close to 50-50 in terms of the assets as it can be after a 20-year marriage and three children. So let me just clarify something. When you say money that was brought into the marriage, you mean during the marriage?
During the marriage, yes. Because money that was brought into the marriage, right? Yes, thank you. Yes, yes, yes.
Premarital money is very different. It's different than what was earned during the marriage. Yes, yes, yes. And in our situation, when we were dating, he was earning nowhere near six figures.
And when we started our marriage, that's when he slowly started to make more money. That changed a lot over the 20 years we were together. And clearly, I was not ever going to be making that kind of money, no matter what my career choices, you know, were. Let me just ask you one other thing, because I think you said a couple of things that are really important, and I just want to highlight them.
One of them is that what equitable distribution means, right? There are a number of factors that a court considers in making a decision as to whether or not what equitable means, what percentage, how will the assets be divided? And there are dozens, hundreds of cases that say this race, and that is that equitable does not mean equal. And yet, the length of the marriage and the history of the parenting and all that in a long-term marriage, you know, often does mean 50-50.
Right. Because all these factors lead up for the court to think, well, this is an economic partnership. And that often doesn't feel fair to one or both of the parties for one reason or the other. And oftentimes, the person who really made a tremendous effort to accumulate the assets feels it's not fair to divide those equally, when often he, but more and more these days, she really put in a tremendous physical, emotional, and intellectual effort to accumulate those assets.
And even more so, it can feel even more unfair if the other person was a stay-at-home parent, and it's very hard to see how difficult that role is when you're not there to see it. And I think that is exactly why I wanted to be here today, to point that out, that I think it's very difficult to understand what your spouse is doing when you're not with them. And even looking back at historically in your marriage, it's difficult to say what their contribution is, and how is this an economic partnership? So in our situation, what I think became a crucial idea for me was because we had such a tragedy in our family, when we first began our marriage, that we had a son who was very, very sick and required nursing care.
So I was up at night when we didn't have a nurse. I was the one that took off from work and stayed with him in the hospital, and he was repeatedly hospitalized. Because I had fertility issues, and before I went to work, you know, I would go to the fertility clinic. So I was going through, I'm sure what a lot of women can identify with, was agony.
And then when we adopted our child, Alan was unable to stay with me. We went abroad to adopt our child. He came for a few days, and then he had to go work. There were so many times where my contribution to the parenting of our children was unusual.
So during the process of what came to be litigation, in our case, and we can talk about how we went from mediation to litigation, that's what really was the part of the negotiations that I struggled with, that I didn't understand how he couldn't empathize and realize how much I had contributed. And I think he felt the same, that I didn't have any idea of the kind of sacrifices that he had made traveling and working, you know, sometimes 16, 18 hours a day. So when we finished with mediation, and Alan agreed to hire a collaborative review attorney, you know, I had my collaborative review attorney, we didn't sign an agreement to collaborate. And that's typically called a participation agreement.
So when you enter the collaborative process formally, you sign a participation agreement. And the participation agreement, in part, says that the attorneys who are signing on are disqualified from litigating. And I think that's what you're talking about. Yes.
And I think because that didn't happen, we both entered into what we each thought was collaboration, but was not. So Alan was very clear, I think, with his attorney and his attorney understood that he had a particular financial plan in mind, a distribution of assets in mind that was different from what you and I have just now discussed, which is often close to 50-50 distribution of assets. I feel that, you know, perhaps there was more of a Wall Street mentality of, you know, I'm willing to risk a certain amount of money on legal fees or in court fees or whatever with the hopes that I can convince Barbara or even the courts that my position on this is justified, you know, that I do deserve or should be awarded for whatever reason more of the assets than 50-50. So that led to us going into the next about two years of litigation, which involved our attorneys going back and forth with each other.
And sadly, I feel that once we didn't have this amicable relationship, which during mediation, as difficult as it was, I think that there was a sense of we both wanted the same thing. We wanted our children to be happy. When it came to talking about money, it was a very different feeling by both of us. And it was no longer amicable.
So we're nearing our time together. And I want to point out that Barbara is a social worker and working with people who are divorcing because of the anonymous nature or the way to contact Laura is through me and my office, 914-738-7765 and at www.westrestorfamilylaw.com. Barbara, it's been so helpful. I thank you having you here today.
And thank you for being willing to share your experience. Thank you. It's been a pleasure. Thank you.
Thank you. Thank you. Thank you. Thank you.