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

“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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How to Lose Custody
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How to Lose Custody | Daniel Burns

{2:24 minutes to read} The law with regard to custody is fairly simple to recite. A court will award custody to the parent it feels has the “best interest” of a child in mind. I recently read a case where the application of this test ended up costing a mother custody. When the couple divorced in July of 2011 the court awarded mom “sole legal custody” of the children of the marriage. It then awarded dad “visitation,” a word I dislike but which is still used by courts in New York.

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“Equitable” Distribution?
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Equitable Distribution | Daniel Burns

{3:36 minutes to read} When mediating their divorce, many couples want to know “what would happen if we went to court.” I suppose for many of them they want to be assured that what they are agreeing to in mediation is at least close to what would happen if the matter were to be decided by a judge. I find myself telling my clients that one of the best reasons to mediate their divorce is that there is very little predictability in the equitable distribution law.

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Divorce & Debt
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Divorce & Debt | Daniel Burns

{3:54 minutes to read} Many people are under the impression that they are responsible for the debts of their spouse simply because they are married. But,

  • Getting married does not necessarily make you responsible for your spouse’s debts;
  • Getting divorced does not necessarily release you from debts incurred while you were married.
The reason why many people become liable for the credit card debt of their spouse is because they either allow their spouse to use their credit cards or add them to the account.

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Putting the Children First
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{3 minutes to read} In my last post I outlined how the Child Support Standards Act (CSSA) works in New York. I recently worked with a couple who created an agreement that worked much better than the result they would have obtained under the CSSA, not only for each of them but for their children! This couple had decided to sell their house, and each of them was going to live in an apartment since neither could afford to purchase another house right away.

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The Child Support Standards Act (CSSA) in New York
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The Child Support Standards Act (CSSA) in New York | Daniel Burns

{3:30 minutes to read}

     The CSSA in New York creates the presumptively correct amount of child support that the “non-custodial” parent pays to the “custodial” parent. Unfortunately, or perhaps fortunately, the statute does not bother to define what the term “custody” means.

       Back in 1989 when the law was first passed, this may not have been much of a problem, since custody generally was assumed to be with mom. Today, however, most parents want to create a “shared parenting” arrangement so that the children reside with each of them about half of the time.

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The Grey Divorce
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The Grey Divorce | Daniel Burns

[Time to Read: 2.6 mins]

     While the rate of divorce for the general population was relatively flat between 1990 and 2010, the divorce rate for couples age 50 and over doubled during that span. As a group, those over 50 accounted for about 25% of all divorces in 2010 according to a study by the National Center for Family & Marriage Research at Bowling Green State University in Ohio.

   Why is this so? Part of the reason is that older couples often have more financial resources to fall back on.

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The “Mediation Friendly” Attorney
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The “Mediation Friendly” Attorney | Daniel Burns

[Time to Read: 2.9 mins]

  I have often heard mediators say that they recommend that their clients each see a “mediation friendly” attorney for legal advice either during or after the mediation process. But I do not believe that sending them off to separate attorneys is a good idea, regardless of whether or not the attorney is “mediation friendly.”

 Isn't it the role of an attorney to advocate for his or her client? Does that mean that a “mediation friendly” attorney would not?

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Why One Lawyer Is Better – Part 2
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Why One Lawyer Is Better – Part 2 | Daniel Burns

 My last blog post, which discussed why I believe having one lawyer helping a couple to obtain a divorce is better than two, generated a lot of comments. Many of those comments caused me to think further about my beliefs.

  For those of you who felt it is an inherent conflict of interest for one lawyer to represent both sides in a divorce, I agree

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