How to Navigate Mediation Challenges Based on Marriage Length?

Video Transcript

Ray Hrdlicka – Host – Attorneys.Media

Hi, this is Ray Hrdlicka, host of Attorneys.Media – Legal Commentary, and today we’re sitting with Bill Leininger, a divorce mediation attorney in Sarasota, Florida, and we’re going to talk about a news item.

It’s been all over the internet, social media, broadcast news, cable news, and that is celebrity divorces.

And we’re going to ask a specific question.

Nicole Kidman and Keith Urban have been married 19 years.

So, Bill, let me ask you this question.

Is there a difference in divorce mediation between a couple that’s been married two years and a couple that’s been married 19 years?

Do you approach it differently?

Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL

Well, first of all, depending on what state you’re in, certain states, Florida and New York, for example, do have laws which talk about the factor of length of the marriage, usually in the claims of alimony or spousal maintenance.

Ray Hrdlicka – Host – Attorneys.Media

Well, let’s talk about Florida, since you’re a Florida attorney.

And let’s talk about, you know, in this particular case, they’ve been married 19 years.

So is divorce, do you approach divorce mediation?

Of course, you know, I’m not specifically talking about them, but the difference between a short marriage and a long marriage.

Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL

Well, in Florida, there’s a specific statute came in a couple of years ago, which now addresses the issue of whether or not it’s a long-term marriage.

If it’s more than 17 years, generally considered a long-term marriage, lifetime alimony could be granted in that.

If it’s a short-term marriage, then you’re really talking about what we call pendente lite or interim alimony to get you through a period of time.

We also have rehabilitation alimony.

If someone wants to become a medical doctor that needs eight years of college and medical school, and the other spouse has the wherewithal to pay for it, not unreasonable.

So yes, at the length of the marriage, always is relevant in mediation because it’s relevant in the underlying divorce law.

So, the interesting fact is, does the prenuptial agreement basically attempt to lock in what the deal is?

Some people will say, for example, for every year of marriage, alimony of 50% of the other spouse’s adjusted gross income will be paid.

They have a formula.

So, you don’t have to have lawyers having a 22 day trial that costs $300,000 with all the accountants and everything else.

There’s a formula.

You go to your $5 calculator and you plug it in.

And that’s what people want.

And they want to have a simplistic resolution of the matter so that if the marriage ends, we hope it doesn’t end, but if it does, we’ll be able to figure out how much each spouse is entitled to relatively quickly and hopefully for the clients without the lawyers spending tens of thousands of dollars.

Well, let me ask the question.

Well, with the caveat, the one limitation is the prenuptial agreement is not relevant on the issues of child custody and child support.

That’s outside the scope of a proper and enforceable prenuptial agreement.

Ray Hrdlicka – Host – Attorneys.Media

Well, I’ll ask a couple of questions on that in a second, but you’ve raised a prenup, and so we’ve not discussed this issue in the past.

As a divorce, expert divorce mediator, do you find the presence of a prenup helpful or a hindrance?

Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL

Generally, it’s helpful, unless, in my professional opinion, I have serious questions about the enforceability of that prenupt rule.

Years ago, I had a case, and the wife met a gentleman in Miami, and she left her house in Brooklyn, New York, and wanted to move down to Miami with that gentleman.

And the gentleman really felt, apparently, that he had the wife by the short hairs, as we say.

In other words, he was in the bargaining position and she called several times saying, you know, he doesn’t want to give me any alimony if the marriage ends before 20 years and stuff like that.

And this was a situation where I had to be realistic.

By the way, I wasn’t the mediator in that case.

I was then as a divorce consultant.

But I see these issues coming up in the mediation.

So if I believe that the agreement would be sustained by the divorce court, then it’s helpful because the parties can say, Hey, you guys want to fight for the next three months. Be my guest.

You’re going to make lawyers rich.

Or you saw the parameters that you both agreed were reasonable.

Excuse me.

If you continue to agree that they were reasonable, why don’t we just use the formula?

Then in three days or so, we’ll have your marital settlement agreement all done and you guys can move on to the rest of your life.

So it really depends upon is the prenuptial agreement reasonable.

Now, if it’s not reasonable, here’s what’s going to happen.

The person who beat the system by having that prenuptial agreement in favor of that spouse, well, they’re happy with that prenuptial agreement, they don’t want it set aside.

So they’re going to be panging on the table saying, I’m not paying any more than what was in the agreement.

Ray Hrdlicka – Host – Attorneys.Media

Yeah, they’re going to be entrenched.

And so you have to move them away from that position.

And, you know, in any situation, whether it’s business, personal, you know, obvious or technical, if somebody is in an entrenched position, you know, that’s a problem, moving them away from that when they firmly believe that’s what they’re going to, you know, for lack of a better, they’re gonna die on that sword.

Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL

And the other spouse in a case like that, assuming they have had a consultation with a competent divorce attorney who has told that spouse, I think we have a good shot at knocking that prenuptial agreement out the window.

Well, that person is gonna be getting excited about the, hey, you know.

We have to make the other side, my spouse, understand that he’s probably or she’s probably going to lose in court, that the judge is going to throw it away.

It was not reasonable under the circumstances.

So it’s that tension back and forth.

Now, the state of Florida has an interesting wrinkle for me as a mediator.

I’m licensed in New York, New Jersey, and Florida.

Florida has a law, and if I violate it, I risk losing my Supreme Court of Florida divorce mediator’s license.

And if they say, Well, Bill, you’ve been a divorce lawyer for over 40 years.

You’ve handled 5,000 divorces.

In your professional opinion, what’s going to happen if it goes to court?

I know it’s going to cost $15,000 or $100,000 in legal fees, but who’s going to win and why?

And what do I have to say in the state of Florida?

I’d love to give you the answer.

But I don’t want to lose my license.

The state of Florida says that I must tell you, like a robot, I have to urge both of you to consult with a competent legal counsel in the state of Florida.

Once you hired me as a divorce neutral, I must be neutral.

And don’t hire me for my opinion.

because I’ve had 40 plus years of divorce experience.

No, because you’re not going to benefit from that.

Whereas in New York and New Jersey, where I also have a license, I’m permitted to say, why’d you come see me?

Well, because you’ve been doing this for 40 years.

You were the first one.

31 years ago, for example, in New York.

So if people want to use me almost as a Litmus test.

Well, we can always ask, well, Bill, how would this case come out at trial?

And obviously, you have to explain the difficulties of evidence.

It’s not what the truth is.

It’s what you can prove in court.

A lot of times, that’s different, okay?

And then you advise them of the length of time, the vagaries of admissibility of evidence and stuff like that, the cost, the uncertainty.

But in my professional opinion, you have a 70 or 80% chance of having that prenuptial agreement sustained.

Yes, I can do that in New York and New Jersey.

I cannot do that in the state of Florida.

Ray Hrdlicka – Host – Attorneys.Media

So kind of like to wrap up here in this segment.

Sometimes there are statutes within the state that are going to come into play with a longer marriage versus a shorter marriage in terms of a divorce.

It sounds like there’s a number of factors that have the potential to come in place at certain times throughout the marriage.

Basically, that’s what I’m hearing.

Is that correct?

Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL

Absolutely.

In addition to the traditional ones, like the ability of the person from whom alimony is being requested to be able to pay it, we have the needs of the applicant who says, I want $20,000 a month alimony.

Why do you need $20,000?

Is that alleged need justifiable?

We also have an overriding rules that the longer the marriage, the more likely, for example, that lifetime alimony would be on the table.

On a two or three-year marriage, it’s not.

But on a 20-year marriage, yes, the judge would have the power, if the circumstances financially made sense, to award lifetime alimony.

So it does very much depend upon the length of the marriage.

All right.

Ray Hrdlicka – Host – Attorneys.Media

Well, thank you very much for this segment of Legal Commentary Interview.

We’ll have you back on again.

Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL

Thank you, Ray.

Additional Resources:

• Divorce and the Impact of the Length of Marriage – A Healthy Divorce
• Mediation in Long-term vs. Short-term Marriages – Divorce Mediator CT
• How the Length of a Marriage May Affect Divorce – McKinley Irvin
• Divorce After 10 Years of Marriage: How to Get the Best Outcome – Equitable Mediation
• The Essential Guide to Divorce Mediation in California – DivorceNet