Author Archives: Daniel R. Burns

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About Daniel R. Burns

Daniel R. Burns is a divorce mediator & attorney in Latham, New York.

EMAIL: info@BurnsMediation.com

BIO: About Daniel

PHONE: 518-785-9522

Cohabitating Instead of Getting Married? Get an Agreement First! Part 1
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Cohabitating Instead of Getting Married? Get an Agreement First! Part 1 | Daniel Burns

Why You Should Have a “Cohabitation Agreement”  {2:42 minutes to read} If a married couple in New York ends their relationship, the Equitable Distribution Law determines how they will divide any of the assets and liabilities acquired during the marriage. There are also laws that help determine how they will each support themselves and how they will support and parent any children they might have together.

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Blaming Your Spouse for Ending the Marriage Can Be a Critical Mistake
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Blaming Your Spouse for Ending the Marriage Can Be a Critical Mistake | Daniel R. Burns

{1:43 minutes to read} When Hank and Wendy first came to me to help mediate their divorce, Wendy reported that it was Hank that wanted to end the marriage. He had moved out of the house they shared with their two children and had moved in with his girlfriend.

During the mediation session, Wendy stated on several occasions that it did not feel fair to her that she had to sell her house and not provide their children with everything they had before Hank left the house. Since he was the one that had decided to end the marriage, Wendy blamed Hank and felt that he should suffer all of the consequences and that her life should not have to change.

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Thinking a Cheating Spouse Will Get You a Better Deal Can be a Critical Mistake
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Thinking a Cheating Spouse Will Get You a Better Deal Can be a Critical Mistake | Daniel R. Burns

{1:48 minutes to read} Many people are under the mistaken belief that they are entitled to a better financial settlement because their spouse had an affair. The reality is that even before New York adopted a No Fault Divorce law in 2010 the courts rarely “punished” a spouse for “marital misconduct.” Even if they did it only happened if the court found the behavior of a spouse was “egregious,” meaning that it offended the sensibilities of the court.

The other reality is that courts simply do not have the time or interest in hearing why your marriage is ending. While most judges care about what happens in every case, most simply don’t have the time to address matters that will not change the outcome.

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Trying to Work Out a Settlement on Your Own Can be a Critical Mistake
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Trying to Work Out a Settlement on Your Own Can be a Critical Mistake | Daniel R. Burns

{2:18 minutes to read} Many couples feel that they can save money by working out the terms of their settlement agreement on their own. That is rarely the case. First, most couples end their marriage because they do not communicate well. That does not mean that they don’t talk; they might talk all the time. But they may not understand what the other is saying. And if you don’t understand what your spouse is proposing, how can you agree to it?

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Age Appropriate Parenting Plans
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Age Appropriate Parenting Plans | Daniel R. Burns

{3:30 minutes to read} At the 2017 Annual Conference for the New York State Council on Divorce Mediation, I heard from someone who has studied custody arrangements and determined what works best for children when their parents are no longer living together. According to University of Virginia Professor Robert E. Emery, Ph.D. who has either conducted or reviewed a variety of studies over the past thirty years, there is no one parenting plan that works for children of all ages. His conclusions:

  • Joint legal custody and shared decision-making are best for children;
  • Children tend to “attach” to one parent; and
  • Parents should adjust their parenting schedule to meet the needs of their children as they grow and mature.

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Thinking with Your Heart Instead of Your Head Can Be a Critical Mistake!
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Thinking with Your Heart Instead of Your Head Can Be a Critical Mistake! | Daniel R. Burns

Critical Mistake # 1:  Thinking with Your Heart Instead of Your Head!

  {4:06 minutes to read} The decision to seek a divorce or separation, in most cases, is a difficult one. It is often preceded by months (if not years) of thought. Your mind is torn between many different emotions: confusion, anger, frustration, and fear, to name just a few.
  • Should I stay or leave?
  • Will he or she change?
  • How will a divorce affect me?
  • How will it affect the children?
  • What about a “trial separation?”

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Leaving the House Before a Divorce Agreement Is Reached Can Be a Mistake
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Leaving the House Before a Divorce Agreement Is Reached Can Be a Mistake | Daniel R. Burns

{2:38 minutes to read} A spouse leaving the house is often one of the reasons couples wind up in court. Even if the two of you have talked about things and believe you have an agreement worked out with the bills and the children, it is not uncommon for misunderstandings to arise that lead to a court action being started. Things often get tense between you and your spouse when you are getting a divorce. Because of this tension, it is tempting to want to remove yourself from the situation by leaving the house. By doing that, however, you are leaving yourself open to a lot of financial and emotional damage.

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Paying a Large Retainer to File a Divorce Action Can Be a Critical Mistake
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Paying a Large Retainer to File a Divorce Action Can Be a Critical Mistake | Daniel R. Burns

{2:12 minutes to read} A retainer is an advance fee that you pay a lawyer which is in effect a down payment that will be applied toward the total fee charged.   The reason why a lawyer requires a retainer is that, if you stop paying them, they must obtain the permission of the judge before they can stop representing you in a court action. Since many judges are reluctant to grant this permission simply because the lawyer is not getting paid, the lawyer wants to collect an advance fee to cover as much of the time spent on your case as possible.

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“Cohabitation” Agreements?
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“Cohabitation” Agreements? | Daniel R. Burns

{3:24 minutes to read} A couple planning on getting married can enter into a prenuptial agreement to deal with such issues as the distribution of marital assets, rights to the estate of the other person, how they will each support themselves if they end their marriage, and how to provide for the care and custody of any children. But what if the couple is not considering marriage but still wishes to live together? Shouldn’t they have an agreement that addresses these matters as well?

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Divorce Mediation Is Not for Everyone – Part 2
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Divorce Mediation Is Not for Everyone – Part 2 | Daniel R. Burns

{3:42 minutes to read} When I first met Tom and Amy, they informed me that they had separated about a month earlier, and their 12-year-old daughter, Katie, was living in the marital residence with Amy. Tom said he moved out of the house because Amy asked him to leave. She disputed this and said she had only told him the marriage was over and that she wanted a divorce.

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Divorce Mediation Is Not for Everyone – Part 1
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{2:00 minutes to read} My office window looks out over my parking lot. The other day I happened to glance out that window while waiting for two new clients to arrive. I noticed a woman get out of her car, look around a bit nervously, and then enter my office building. When my clients arrived, I realized that the woman I observed was one of them.

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A Decision Based on Emotions Can Hurt Everyone!
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A Decision Based on Emotions Can Hurt Everyone! | Daniel Burns

{2:54 minutes to read} I recently met with a couple who wanted to hear about my divorce mediation services. During the meeting Maria*, the wife, related how she had decided a year earlier that the marriage was over and had left the house. Her husband, Howard, expressed that he was not in favor of a divorce and wanted Maria to return home. However, she was committed to ending the marriage and suggested that they mediate the terms of the divorce rather than hire separate attorneys and litigate the matter. Howard asked me to describe the services I offered. I explained that I first required full financial disclosure from each party.

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Don’t Litigate a Divorce Because Your Spouse Had an Affair!
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Don’t Litigate a Divorce Because Your Spouse Had an Affair! | Daniel R. Burns

{2:54 minutes to read} I often work with couples where one of them has had an affair. When this is the case, it is common for the other spouse to feel hurt and angry. In addition, he/she often does not trust the spouse that had the affair. While the affair may have damaged the marriage beyond the point of repair, it is how the spouse that has been cheated on responds that determines how well the couple and their children get through the resulting divorce.

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Can’t We Disagree Without Being Disagreeable?
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Can’t We Disagree Without Being Disagreeable? | Daniel Burns

{3:24 minutes to read} Like most people, I was deeply saddened by the events that occurred in Orlando in June, when a madman killed 50 innocent people at a nightclub. Shortly after this tragedy, someone sent a letter to the editor of my local newspaper saying that anyone who does not believe in greater gun control is stupid! The next day the same newspaper printed a response from someone saying that anyone who wanted greater gun control was crazy!

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Mediation Requires the Skills of an Educator
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Mediation Requires the Skills of an Educator | Daniel R. Burns

(2:42 minutes to read} As a divorce mediator, I find I am more of an educator than a lawyer. This is because I often work with spouses who each had a different role to play during the marriage, and each needs to learn about the role the other spouse played. One may have been responsible for cooking and buying groceries while the other might be in charge of laundry and cleaning the house. One may have paid the bills while the other mowed the lawn.

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Informed Decision Making
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Informed Decision Making | Daniel R. Burns

{3:00 minutes to read} As I mentioned in my prior post, The Initial Consultation, I meet with all of my prospective clients before I begin the mediation. During this first meeting, one of the things I tell them is that I require full financial disclosure. I don’t allow them to waive this requirement, even if they say that they’ve “got everything worked out and don’t need to make financial disclosure.

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Is “Fair Enough” Fair Enough?
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Is “Fair Enough” Fair Enough? | Daniel Burns

The secret of change is to focus all of your energy not on fighting the old, but on building the new. –Socrates {2:30 minutes to read} Divorce is arguably one of the most difficult things people go through. When I meet with couples for the first time, there can be feelings of hurt, anger, and regret. In the midst of these powerful emotions, it can sometimes be difficult to remember why they are there: to move forward, set new goals, and begin a new chapter in their lives.

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The Initial Consultation
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The Initial Consultation | Daniel Burns

{2:18 minutes to read} It is my practice to meet with a couple when they first contact me about my services. I believe this meeting is so important that I require it for all of my clients before I will begin working with them. I do not charge for this meeting. During this preliminary session, which I refer to as a consultation, I discuss the mediation process, review my confidentiality requirements, and discuss my fees. I also provide the couple with a Law Summary, give them some suggestions on how to make the mediation process more effective, and provide them with a list of the financial documents I want them to bring to the first mediation session.

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Power and Control
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Power and Control | Daniel R. Burns

{2:09 minutes to read} When I first met with Tricia* and Brian*, they informed me that they had decided to end their marriage. However, since they were unable to afford to live separately, they had decided to stay together in the marital residence until it was sold. Tricia then expressed a concern that Brian was preventing her from having access to the money she felt she needed. She had lost her job several years ago and had not yet been able to find a new one. As a result, she did not have her “own” money to use and felt that Brian was not giving her enough. On the other hand, Brian felt that she was wasting their money on frivolous expenses.

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Sandy Hook and Child Support
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Sandy Hook and Child Support |Daniel R. Burns

{2:24 minutes to read} Sandy Hook has been on my mind lately. I’m sure you remember this tragedy that occurred three years ago when 26 people, including 20 young children, were murdered by a madman. As a grandfather of a kindergartener at the time, it still brings tears to my eyes to think of those poor families who lost their children. One of the reasons I have been thinking of Sandy Hook is that I recently received an email from a client six months after he signed a settlement agreement. He felt that the amount of child support he had agreed to pay was too much because his young son was with him for half the time.

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Spousal Support in New York – Part 2
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Spousal Support in New York – Part 2 | Daniel R. Burns

{3:18 minutes to read} In a recent post, I wrote about the new spousal support law that New York has adopted. This new law created a formula for determining spousal maintenance based on the income of each spouse and the length of the marriage. This law took effect on January 23, 2016, but, since I knew it was coming, I started informing my clients about its provisions in September. And when I started applying it to some “real life” situations, I became concerned that in many instances, this new law just might not be “fair” to the payee spouse.

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Social Security Benefits for Children
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Social Security Benefits for Children | Daniel R. Burns

{2:36 minutes to read} After years of trying to stay together, John and Mary decided to end their marriage. They had 2 children, and the agreement that they reached in mediation required John to pay child support to Mary until each of the children were emancipated. During one of the mediation sessions, Mary expressed concern about how she would be able to take care of the children if John died or became disabled before they were grown. Click here to read Daniel R. Burns' full article...

When Is Your Divorce Final?
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When Is Your Divorce Final? | Daniel R. Burns

I was recently contacted by a client who was denied coverage under her husband’s health insurance plan. The reason for the denial was that her claim was for a service that occurred after the judge had signed her divorce but before she knew it had been signed. First, some background. Most companies will allow an employee to continue to cover his or her spouse under a family health insurance plan after a legal separation but before a divorce.  The reason for this is that a spouse is still considered a family member until the divorce.

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Spousal Maintenance in 2016
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Spousal Maintenance in 2016 | Daniel R. Burns

{2:30 minutes to read} New York State has passed new legislation that uses a formula based on the income of each spouse to determine the amount of spousal maintenance. The new statute also creates an “advisory schedule,” which is based on the length of the marriage, for determining the duration. (For a more lengthy explanation of the new statute, go to the Law Summary entitled “Maintenance” on my website.) This statute replaces the old “needs-based” method that required a court to consider 20 factors when determining the amount and duration of spousal support. So, how is this new statute going to work in mediation?

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The Not-So-Golden Years, Part 1
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{3:36 minutes to read} I had a recent mediation that has caused me to consider how to address the future consequences that face a spouse who left the workforce for many years during the time of the marriage.

In this case, the wife had taken on the role of primary caretaker of the couple’s children. As a result, she left the workforce when the children were born and, when she returned to work many years later, she was only able secure employment that paid her about $40,000 a year. This job also did not provide a 401(k) for the employees, although she has been able to set up an IRA that now has about $10,000 in it.

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Who Sets and Enforces Ground Rules in Mediation?
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{2:42 minutes to read} My friend, Chip Rose, is a mediator in California. One of the things he believes is that it is the responsibility of the mediator to control the process while the clients control the outcome. In order to control the process, he creates ground rules for his clients that include how they respond to each other during the mediation sessions. He believes that by doing so he can help them obtain what he calls “the best possible outcome under the circumstances.”

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The Cost of Litigated Divorce
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The Cost of a Litigated Divorce | Daniel Burns

{2:54 minutes to read} When I first meet with my clients, one thing that I almost always discuss is, at least for most couples, the challenge of finding a way to live separately on the same income that was hard to live on together! As part of that discussion, we then talk about the legal fees associated with a litigated versus a mediated divorce. When I tell them that the cost for attorneys in a litigated divorce often exceeds $20,000 per person, I suspect many of them question my facts. But I have become aware of several instances recently that confirmed these figures.

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There Is No Predictability in Divorce
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There Is No Predictability in Divorce | Daniel Burns

{2:18 minutes to read} At a recent conference, I sat in on an update on the law. The presenter, who was an attorney that was very knowledgeable about divorce law, was reviewing various cases and the legal lesson that the cases provided. And by the end of the session, I realized that there was simply no predictability in any of it.

For example, he discussed several cases involving spousal support that generated vastly different outcomes.

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Social Insecurity
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{2:48 minutes to read} I recently attended the Annual Conference of the New York State Council on Divorce Mediation where one of the presentations dealt with Social Security and divorce. During the session, the presenter stated that as long as you were married for 10 years or more, your Social Security benefits would be based upon either your earnings or the earnings of your spouse, whichever provides a greater benefit. This would apply even if you and your spouse were divorced.

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No Pension? No Worries, Part II
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{3:06 minutes to read} A recent survey found that many middle age and older people fear that they will run out of money in retirement. While there are many reasons for this concern, 2 major factors are the decline of the traditional pension and the increase in our life span.

A traditional pension is a defined benefit plan that pays an employee a lifetime benefit based on their final average salary and years of service.

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