2021 – We are dealing with the reality of a Global Pandemic and its effect on businesses and our lifestyles. We are struck with rising gas costs, supply chain shortages, labor shortages, unemployment issues and the Great Resignation as well as many other global issues. Sadly, we are also dealing with a tremendous increase in divorce proceedings as more and more marriages are collapsing due to the weight of these heavy issues.

People often ask me what makes my process unique, and why would they have an interest in utilizing my services to facilitate their own divorce. I usually explain that due to my own rather difficult and complicated divorce, I created a special process which is built for success and to actually result in a “Smart” divorce.

Litigation, by far the most common method of dealing with a divorce is an expensive, time consuming and emotionally consuming saga which rarely results in both parties being happy or content with what is accomplished. More often than not, one party feels that they were ruined by the proceedings, and can often use excessive litigation or other methods to get revenge or challenge an unfavorable result. This means that even when a party is finished with court proceedings, they have a very strong likelihood of returning to court.

Arbitration is another commonly used method of divorce where people choose to utilize the services of either a professional arbitrator, or an amateur one to resolve their disputes. One common concept within the Orthodox Jewish World is that of the Bais Din, a religious tribunal which makes rulings and determinations based on religious law on how to dissolve the marriage. While it is somewhat effective from the religious law aspect – there are many other issues with it as a process. For example there are currently no checks and balances, nor a central court of appeals in order to appeal a seemingly unfair ruling. Additionally, in many states such as New York State, arbitrators are not allowed to make rulings on custody and visitation issues as this is a legal right reserved for a family or Supreme court judge. There are also many cases where people allege impropriety or perhaps even illegal proceedings which can create further litigation as the parties will eventually take the matter to court. Finally, while some of these religious courts do attempt to “merge” the needs of religious law and secular law. it is often done in a confusing and unenforceable manner. Any document that results is basically worthless if it is unenforceable, since you will need to litigate in court to modify it.

So now we enter our third option – Mediation. Mediation is an Alternate Dispute Resolution Process (ADR for short) where the parties meet with a professionally trained neutral third party, who attempts to get them to a settlement which works for the parties. Since most mediators involve the parties in their process, this usually results in both parties being satisfied with the settlement and also helps keep them out of court. People who were an essential part of building an agreement will seldom break that agreement. Within the world of mediation, you also are prevented options that are not necessarily available to the parties.

For example, say you have a couple that was married for 10 years and the wife would be entitled to collect alimony (called maintenance in NYS) as well as child support for one child. If the child support obligation based on the NYCSSA tables (the court’s standard of determining an obligation) would generate a figure of $600/month for child support, and $400 for maintenance/alimony this would leave the parties with the non-custodial parent, (in this case the father) paying $1000/month to the custodial parent (in this case the mother). That $600 would be tax free since child support is not considered income, while the maintenance would be taxable, since it is considered income. Additionally the child support would continue until the children’s emancipation (in NY until 21, in NJ until 18; unless the child is full time in college) even if the wife was to remarry. Meanwhile the alimony/maintenance would only be for 10-30% of the duration of the marriage – so 1-3 years, and terminate upon the wife getting remarried.

So we can enter this couple into mediation, discuss all of these facts with them and then go about building a win-win scenario. If the husband expects his job income to increase in the next few years, it would benefit him to have a fixed rate of child support with maintenance/alimony included (say for $800 flat) and not have to worry about an increase of his payments. The wife would be happy with an increased child support payment, since it is tax free and can last much longer and in turn is willing to waive the provision within child support standards which allows her to revisit it every 3 years or if there is a 15% increase or reduction of income. So the settled award amount would be $800 flat, child support and the parties would agree to deviate from the norm and waive the right to revisit the award unless a special change of circumstances were to arrive. This is an example of a Win Win scenario we could only create in mediation.

Creating “Win-Win” scenarios are often the best tactic in negotiations because it often creates an environment where both parties are happy with the relationship moving forward. Excessive litigation or arbitration on the other hand often can destroy the parties relationship with each other and make it very hard to “co-parent” together or work with each other. Mediation, especially the mediation methods that I practice, are built on making a series of Win-Win scenarios, so we can create the Smartest Divorce.

I noticed after a few years of doing divorce coaching and reviewing many divorce settlements and rulings that most custody and financial determinations fell within a certain range. It might be after the couple spent 2 years in litigation, and 6 figures in legal bills but only very rarely were divorces being settled or ruled outside of this range. So this brought forth the very obvious question, why do these couples have to go through this lengthy and expensive process to end up within the same range of options? And wouldn’t a couple tremendously benefit from creating a customized agreement that works for them BOTH versus the one size fits all that you get from litigation? Finally, a divorce normally takes 18-24 months from filing to trial in NYS (it can be 6 months to a year shorter in NJ, depending on which county court). This is without a forensic evaluation being done, which can further delay the settlement. Once COVID hit and all open cases were delayed for 6 months, this timeframe jumped to 24-30 months, and that is WITHOUT factoring in the significant rise in new divorce actions. With mediation, specifically the Smartest Divorce mediation, this process can be shortened to 1-2 months of negotiations/mediation, and then a 2-3 month waiting period where we are just waiting for the court to approve the submitted paperwork.

Many people think you need to be a lawyer to facilitate divorces. This is simply incorrect, anyone can create a settlement offer and file the paperwork to get a divorce finalized. However, it is extremely important to have attorneys you can consult with for any possible legal issues, one of the unique things about the Smartest Divorce method is that I have a network of divorce attorneys that I can consult with when needed to ensure that our settlement is 100% legal and enforceable. I also have taken my NY 146b mediation training and was trained in some very helpful and useful mediation techniques which I utilize in my practice. Finally, I utilize some software and Smartest Divorce Practices that help create a Win-Win scenario for the couple early on in the proceedings.

My initial consultation call is free, and I am brutally honest with potential clients about my prices and processes as well as telling them if I feel I can get them an agreement. If we feel that we can reach a settlement, I schedule an initial/intake session with the couple where I go through our processes and procedures of how we will get this divorce settled. As items are solved, we update them on the software I utilize so the parties can see the terms reached on each item. Nothing is committed until we have a signed agreement. But since the parties are able to custom design their own divorce, and they are active participants in doing so; they have complete ownership in this process and very seldom will they jeopardize that by challenging a settled issue with new demands.

The entire mediation process is confidential and any terms discussed in mediation cannot be used in future litigations. The only items which would create a legal requirement to break confidentiality are plans to perform bodily harm on another person or child. But nothing discussed outside of that would be usable in court against either party. I am not taking any sides for either party, since my neutrality is what allows the process to take place. It is irrelevant to me what caused the divorce to happen, what is the only important fact is HOW the divorce happens.

I know that more and more people are realizing that their divorce is inevitable and needs to happen. I can only hope and pray that they choose to go about their divorce the Smartest Way, as that gives the best chances for all parties and the children to have a good and normal life moving forward.

For any inquiries or questions please email thesmartestdivorce@gmail.com or call 845-213-3718