Do You Have to Have “Grounds” For Divorce in California?

by Shawn Skillin, Esq., Mediator

No. California is a “No Fault” divorce state. This means you do not have to prove with legal evidence your reason (grounds) for getting divorced. In your Petition requesting your divorce you just state that you have “irreconcilable differences.” This is the basis or grounds for your divorce. You do not have to prove you have irreconcilable differences, you merely state that they exist.

This means that you do not have to prove that your spouse committed adultery, abuse or abandonment in order to get divorced in California. These things may or may not have happened in your marriage and may or may not be one of the reasons you want a divorce, the court just does not require you to prove it in order to get divorced.

Clients often want the court to know why they are getting a divorce, especially when they perceive that the other spouse has done something “wrong” to end the relationship. It is frustrating that they are never “heard” by the court. In mediation, these issues may come up and can, at least, be discussed.

Just because the Court does not require you to prove these issues, it doesn’t mean that you don’t have unresolved feelings about them if they occurred during your marriage. And while the court may not wish to hear about it, it can be very helpful to discuss your feelings with a counselor.

If Domestic Violence (DV) is an issue in your marriage, the court can issue appropriate restraining orders. The grounds for your divorce will still be “irreconcilable differences”. However, if DV is proved to the court’s satisfaction, it may have an effect on certain outcomes in the divorce, such as spousal support or child custody and visitation. (If you or your children are victims of DV it is strongly recommended that you get help. The court has free assistance available for victims of DV.)

YES, NO, or I’LL THINK ABOUT IT (Two Tips for Resolving Any Conflict)

by Bill Eddy, LCSW, ESQ., NCRC Senior Family Mediator

Whether in a divorce, a workplace dispute, or a conflict with a neighbor, it’s easy to get caught up in defending our own behavior and point of view. In a conflict, people can “push our buttons,” and it’s easy to react before we know it. The focus can quickly become personal and about the past.

To avoid this problem, there’s a simple, two-step method that seems to help, no matter what type of conflict you are in. If you think you are going to be in a difficult situation, remind yourself of these two steps before you start talking. And if you are in the middle of an argument, you can always shift to this approach.

1) First Person: MAKE A PROPOSAL

Whatever has happened before is less important than what to do now. Avoid trying to emphasize how bad the problem is or criticizing the other person’s past actions. There’s nothing he or she can do about the past now. This just triggers defensiveness. Plus, people never agree on what happened in the past anyway. Instead, picture a solution and propose it.

For example, in a divorce dispute: “If you’re going to be late to pick up the kids on Fridays, then I propose we just change the pickup time to a more realistic time. Instead of 5pm, let’s make it 6:30pm.”

Or in a workplace dispute: “I propose that we talk to our manager about finding a better cubicle for you, since you have so many phone calls that need to be made and I often hear them.”

2) Second Person: YES, NO, or I’LL THINK ABOUT IT

All you have to do to respond to such a proposal is say: “Yes.” “No.” or “I’ll think about it.” You always have the right to say: “Yes.” “No.” or “I’ll think about it.” Of course, there are consequences to each choice, but you always have these three choices at least. Here’s some examples of each:

YES: “Yes, I agree. Let’s do that.” And then stop! No need to save face, evaluate the other person’s proposal, or give the other person some negative feedback. Just let it go. After all, if you have been personally criticized or attacked, it’s not about you. Personal attacks are not problem-solving. They are about the person making the hostile attack. You are better off to ignore everything else.

NO: “No, I don’t want to change the pickup time. I’ll try to make other arrangements to get there on time. Let’s keep it as is.” Just keep it simple. Avoid the urge to defend your decision or criticize the other person’s idea. You said no. You’re done. Let it drop.

I’LL THINK ABOUT IT: “I don’t know about your proposal, but I’ll think about it. I’ll get back to you tomorrow about your idea. Right now I have to get back to work. Thanks for making a proposal.” Once again, just stop the discussion there. Avoid the temptation to discuss it at length, or question the validity of the other person’s point of view. It is what it is.

When you say “I’ll think about it,” you are respecting the other person. It calms people down to know you are taking them seriously enough to think about what they said. This doesn’t mean you will agree. It just means you’ll think about it.

MAKE A NEW PROPOSAL: After you think about it, you can always make a new proposal. Perhaps you’ll think of a new approach that neither of you thought of before. Try it out. You can always propose anything. (But remember there are consequences to each proposal.) And you can always respond: “Yes.” “No.” or “I’ll think about it.” (And there are consequences to each of those choices, too.)

AVOID MAKING IT PERSONAL
In the heat of the conflict, it’s easy to react and criticize the other person’s proposals—or even to criticize the other person personally, such as saying that he or she is arrogant, ignorant, stupid, crazy or evil. It’s easy and natural to want to say: “You’re so stupid it makes me sick.” Or: “What are you, crazy?” “Your proposal is the worst idea I have ever heard.” But if you want to end the dispute and move on, just ask for a proposal and respond “Yes” “No” or “I’ll think about it.”

© 2009 High Conflict Institute -- published with permission

IF I’M USING MEDIATION, DO I EVER HAVE TO GO TO COURT?

by Shawn Skillin, Esq., Mediator

When you file for divorce in San Diego County the Court sets a date for a Court hearing called a Status Conference approximately 3-5 months after the date your Petition is filed. However, in mediation, we file an agreement with the Petition telling the Court that you are in Mediation and asking the Court to delay the Status Conference for one year. The Court will then give you one year to finalize your divorce. If you are able to complete mediation and get all of your paperwork in to the Court in less than one year, you should not have to go to Court.

However, if it takes longer than one year, you may have to go to your Status Conference and let the judge know you are still trying to finish your divorce in mediation. The Court will give you more time, but will probably set another status conference in the future. Each judge has a different policy regarding how much additional time they will give you.

You may also have to go to Court if you and your spouse are unable to agree on all of your issues in mediation. In that case you would have to set a date for a trial at which a judge would decide on any unresolved issues.

Refer to a previous blog article regarding Status Conferences on February 9, 2009.

CAN WE USE NCRC’S DIVORCE/FAMILY LAW MEDIATION SERVICES IF WE HAVEN'T DECIDED WHETHER TO STAY TOGETHER, SEPARATE OR DIVORCE?

by Robin Duboe Seigle, Director, NCRC Divorce Mediation Services

Because NCRC’s program is called “Divorce Mediation Services”, many people assume that to use it, they need to have already decided to get divorced. With the current tough economic times, couples who might be thinking about or wanting to get divorced are not sure that they can afford to live in two separate households. Others have issues about their shared finances and want to separate them, but wonder if they have to get divorced to do that.

NCRC’S DIVORCE/FAMILY LAW MEDIATION SERVICES CAN BE USED TO HELP YOU DECIDE WHETHER TO STAY TOGETHER, SEPARATE, FILE FOR DIVORCE or LEGAL SEPARATION and/or TO EXPLORE SPLITTING FINANCES WITHOUT SEPARATING OR DIVORCING.

The role of NCRC’s Divorce/Family Law Mediators is to assist the couple to discuss ANY issues or concerns they have (whether married or not) about staying together, separating, initiating the legal family law process, staying in the same house, separating their finances, etc. The role of the mediator is to provide legal and practical information, as well as to facilitate the discussion so that it can be very productive and without “fighting”.

Mediation is a good way to work together to determine in which direction you want to proceed. Sometimes, after couples meet with a mediator, they decide to try counseling, a trial separation, or other alternatives.

Please call 619-238-2400 extension 220 or 223 for further information. Trissan Maleskey or I can help you explore whether our services will be appropriate for your situation.

Divorce Mediation vs. Litigation by Bill Eddy, LCSW, Esq., Divorce/Family Law Mediator

Over the past 25 years, many couples have turned to divorce mediation instead of litigation in Family Court, because it minimizes animosity and provides more control over the divorce process. Today, in this time of economic distress, even more people are seeking to use divorce mediation, primarily because it saves them money.

How Decisions Are Made
In Family Court litigation, the decisions are made by a judge based on the California Family Code and Court of Appeals decisions. Many decisions are clear cut (child support and property division), regardless of who has done what. Other decisions (spousal support, custody and visitation) are very discretionary, so that different judges might reach different conclusions. The main point in litigation, is that decisions are made based on broad legal standards which may have nothing to do with your specific situation. The job of the parties and their attorneys, if any, is to argue over the past and reasons for favorable future court orders. Litigation promotes conflict, then resolution, and sometimes more conflict in the future because of the stress it places on the parties.

In Mediation, the parties are the decision-makers. The parties are informed of basic California Family laws, but then they are allowed to vary from the standards and make agreements which fit their specific situation. For example, a judge in court cannot usually deviate from the Child Support Guidelines, but parents (once they are informed about the Guidelines) can agree to other amounts. Property division can be shaped to fit the needs of the parties, such as delaying the sale of their home in this bad economy. Spousal support can be structured to pay more now and less later, or vice versa, or a lump sum buy-out may be made, if the parties agree. At court, all a judge will do is order a monthly amount and the parties will need to come back to court someday to change it.

The Overall Cost
In divorce litigation, each party often retains an attorney who will be responsible for presenting their case to the judge in Family Court. Family law attorneys typically charge $250-400 in San Diego County. A retainer is commonly between $1500 and $5000 – for each party. The overall cost may be up to $40,000 or even $400,000, depending on the assets of the family estate and the number of issues the judge will need to decide. Lawyers may need to do discovery (depositions, subpoenas, demands for documents, etc.) and legal research. Much time is spent preparing papers for court hearings and waiting around at court.

In divorce mediation, the cost is typically between $2000 and $5000 -- depending on the complexity of the issues involved and the level of disagreement of the spouses. While a mediator may also charge $250 per hour (as we do at NCRC), the number of hours is significantly less than in litigation, because most of the time is spent making decisions with the parties. Proposals and agreements can be made with both parties and the mediator present to discuss them right away. Unworkable terms can be discarded or refined very quickly. In litigated divorces, settlement proposals take time to go back and forth between the parties’ attorneys and themselves. Since most litigated divorces are resolved by agreement anyway (often at the courthouse at the last minute), it makes sense to have the parties assisted in working together throughout the process.

Also, in most divorce mediations, you pay for each mediation session at the end of the session. Then you pay for the preparation of court papers before each document is prepared. With this approach, parties can proceed with the divorce at the same pace as their finances allow. For example, after some parties have made all of their decisions, they decide to wait a month or two before paying to have the Marital Settlement Agreement prepared.

Sharing the Cost
Usually, each party pays one-half of the cost of the mediation. However, there are also many cases in which one party agrees to pay all of the cost, or a higher percentage than the other. In some cases, one party pays for the mediation as fees are incurred, then gets reimbursed for one-half in the final property division.

In litigated divorces, the cost is often driven by one party -- who can force deadlines for discovery and hearings on the other party. This drives the other party's costs upwards.

Fear and Anger
Much of a litigated divorce is driven by one or both parties' fear or anger. This may be because of an affair, bad financial decisions, substance abuse, or other issues which caused mistrust. However, in mediation emotions can be calmed so that decisions can be made, while using a consulting attorney to advise the client, examine financial documents, and review the Marital Settlement Agreement to protect the client's interests. This is much less expensive than taking the whole case to court because of fear or anger.

Inexpensive To Try
Since divorce mediation is a pay-as-you-go process, there is little financial risk in attempting to use it even if you are skeptical. At worst, you might spend a few hundred dollars on mediation and end up in court anyway. However, 80-90% of cases that go to divorce mediation usually finish in mediation. In that case, you may save yourself tens of thousands of dollars.

Can a Couple Participate in Divorce Mediation if One of Them Lives Out of Town? by Robin Duboe Seigle, J.D., Dir., NCRC Divorce Mediation Services

Divorce mediation is a facilitated negotiation which requires the participation of both people, but they do not have to be physically in the same room. Mediation can work if one is with the Mediator and the other person participates by speaker phone, or with both parties participating in a 3-way conference call.

If at all possible, it is advantageous for both people to attend the first session (or at least one session) in person so they can develop a rapport with the mediator. However, we have worked with clients where one or both people lived in another county or state and did not have the ability and/or financial resources to commute to San Diego. They (and the mediator) may miss the benefit of seeing the facial expressions and body language of the other person, but it can be overcome. Cases with one or both people participating by telephone resolve as often as the cases where both people are present.

Sometimes, even local couples will choose to have some of their sessions in a 3-way conference call for convenience when scheduling is difficult.

HOW IS CHILD SUPPORT DETERMINED and HOW FLEXIBLE IS IT? by Barney Connaughton, Esq., Mediator

How is Child Support Calculated?
In California, when the Court is asked to make a decision regarding child support it is required to set the support amount using an algebraic formula commonly referred to as “guideline child support.” The formula considers the number of children, the income of each parent, and the percentage of time the children are in each parent’s care. Computer programs have been designed to make the algebraic calculations considering the tax situation of each parent, as well as the deductions from each parent’s income for such things as health insurance, union dues, mandatory retirement and other support obligations. In a case where the Court is asked to decide the issue of child support the Judge is not allowed to deviate from the guideline amount unless there are special circumstances. Costs for daycare expenses related to the employment of the parties as well as unreimbursed medical, dental, orthodontia, counseling and prescription drug costs for the children are added on as support in addition to the indicated guideline amount.

Are There Any Alternatives to Guideline Child Support?
Couples can reach agreements to a child support amount that is greater or less than the guideline amount. For the Court to accept such an agreement the couple is required to acknowledge their right to have support set by guideline, that their agreement is in the best interest of the children and will allow each parent to adequately meet the needs of the children. If child support is set in a sum less than the guideline amount, the receiving parent can later petition the Court to have the amount increased to the guideline level which the Court will do given the mandate to order support consistent with the state guidelines.

How Does Participation in Divorce/Paternity Mediation Affect Child Support Calculations?
Mediation gives the couple flexibility regarding the setting of child support. They may choose to stick to a guideline level of support, or they may look at the needs of each household and come up with a level of support that focuses more on how each of their needs can be best met. Guideline child support provides the Court with a quick mechanism to set support. Unfortunately, this level of support may either be unrealistic to the parent obligated to pay or insufficient for the supported parent to meet the needs of the children. Looking at all the circumstances of the couple rather than just the inputs that the guideline calculations call for, can aid in making a support decision that is best for the whole family.

What Does "In Pro Per" Mean? by Tim Bischel, Esq., Divorce Mediator

The law often uses archaic terms with which most people are not familiar in divorce proceedings. One of the most common terms, In Pro Per, appears on most court filings in divorce cases in San Diego. In Pro Per, or more specifically In Propria Persona, appears after the heading “Attorney For:” and literally means “for one’s self.” In Pro Per is used in California when a person acts as his/her own attorney in a legal dispute.

Filing In Pro Per does not mean you are limited in any of your legal rights, only that you are representing yourself in the proceeding. Many people choose to file In Pro Per for a variety of reasons, chief among these is cost.

Can parties who are In Pro Per get help from professonals?
However, just because you are taking responsibility for your own legal case does not mean that you cannot get significant assistance from a legal professional. NCRC offers mediation services which help people who are filing In Pro Per navigate and complete their cases. Depending on the level of assistance needed, a mediator can walk you through step by step each issue in a divorce or simply help you with the forms and court procedures in a single session.

Beyond NCRC many legal professionals are more than willing to bill you for a few hours of their time in order to explain forms, run support calculations, or work for you on a task by task basis without formally representing you in the case. So if you are filing In Pro Per, don’t think that you have to do everything by yourself. Different degrees of help are available to you as you navigate through the legal system.

COMMUNICATION TIPS FOR DIVORCE MEDIATION CLIENTS by Robin Seigle, J.D., Director, NCRC Divorce Mediation Services

Many clients going through divorce mediation are concerned about their ability to speak up and negotiate for themselves in mediation, especially if they perceive the other person to be more vocal, more assertive, and/or more knowledgeable about their finances or the law. On the other hand, they know they are likely to have a better outcome if they can come to agreements in mediation rather than leaving the decision for a judge in court. A “win” in court might be an overall “loss” when factoring in the legal costs, the time involved, and the acrimony that can be created by having indirect communication, i.e. through the attorneys, where the message is altered as it passes from one person to the other.

Mediation is a “facilitated negotiation,” Despite the client or clients’ hopes that the mediator will tell the other person that their view is incorrect, the mediators assist the parties to reach their own conclusions about what is workable and acceptable in their case. They do provide information about the laws relating to divorce, including division of assets and debts, spousal support, child support, and how they share the time with their children. They will tell the parties what they “could” do, not what they “should” do.

Questions to ask the Mediator during mediation
There are questions the parties can ask the mediator to help them better understand the alternatives, including the range of what might happen if the parties did not agree and took their issue to court to be decided by a judge. Here are some examples:

1. If we do not come to an agreement in mediation and take this issue to court, what might a judge order? Is there a range of possible outcomes? If so, what is that range likely to be?

2. How have other couples handled this?

3. What are the potential long term effects or consequences of one approach or another?

4. How does ________’s living with a (girl or boy)friend affect the support amount that would be awarded?

Worry and fear is not uncommon for divorcing couples, and it often leads to ineffective communication.
Divorce is a stressful time. When people are worried or afraid, they often say things to their spouse that sounds combative (“Why should you get any of my retirement, I earned it!”) or threatening (“Well, I’ll just quit my job and then you won’t get anything!”). When there is a disparity in income, especially when it is a long marriage, both parties are concerned about their ability to have enough money to continue in the lifestyle in which they have been living. The trick for communicating in the above examples is NOT to react to the statement itself, but to think about what is “behind” it. What sounds hostile, might be based on fear. Responding in-kind just escalates the conflict and rarely gets the couple to a place of resolution.

Be Strategic
· Think about what you would like the other person to do.
· Think about the way you can say it so the other person can “hear” it.
· Approach him/her based on how he/she is, not how you would like him/her to be.
· Be prepared to give him/her something that he/she wants, so that he/she will give you some of what you want.
· If the other person’s initial reaction to a proposal will be “no,” give him/her time to think about it before responding.
· Say “no,” if you don’t agree or ask for more time to consider the proposal.

Reflect back the other’s feelings:
*I understand that that is what you would like.
*I can hear that you don’t think you should have to share your earned assets with me.
*You would like assets to be divided according to the pro rata share we contributed.
*You wish this wasn’t a community property state.
*You would prefer not paying spousal support.
*You don’t think it is fair that I am entitled to a portion of your retirement.
*It sounds as if you are concerned that you won’t be left with enough money to live comfortably.
*After hearing a proposal that you would not agree to:
oYou would like it to be that way, and if I agreed, it could be that way. However, I am not willing to agree to (e.g. that amount of support because I want to receive the guideline support amount).
o We can discuss your proposal among others at the next mediation session

Effective communication can be difficult any time there are differences, and especially during the divorce process, but it can be practiced. Write down some of these tips on an index card and keep it in your notes to refer to while you are at the mediation session. Keep in mind, too, that it is not only what you say but how you say it that affects how it is heard.

WHAT IS A FAMILY COURT STATUS CONFERENCE? by Shawn Skillin, Esq., Mediator

Once you have filed for divorce, the Court sends out a “Notice to Appear” for a Status Conference. The Status Conference date is generally scheduled for 3-5 months after the Petition for Dissolution is filed.

Both parties or their attorneys (if they have them) are required to appear for the Status Conference. The Judge checks in with the parties to see what is happening in their divorce. If you are represented by attorneys, they will give a brief report to the Judge and then may ask for certain deadlines to be set regarding discovery or other procedural issues. Your attorneys will bill you for the time they spend in Court for this conference as well as for any waiting time they may have. While a Status Conference is brief, generally 5-10 minutes, your attorney may have to wait his or her turn to be called.

If you do not have attorneys, you are sent out to meet with a representative from the Family Law Facilitators office. They will try to figure out what you need to do next to move your divorce along to final judgment. The Facilitator can’t give legal advice and can only guide you in the proper direction. The Court will then give you another date to come back and check in again. Eventually, if you are not making progress the Court may set your case for trial. You should plan on spending 3-4 hours at Court.

Will the Judge Make Any Decisions About My Case?
Whether you have an attorney or not, the Judge does not make any substantive decisions regarding your case at this conference. The Judge just wants to know: are you in mediation, will you need a trial, do you have an attorney, and if so, are the attorneys moving the case forward. The Judge will not make decisions about child support, spousal support or custody and visitation at this conference.

What Happens If I Don't Show Up?
It is important that you attend the conference if you do not have an attorney. If you and your spouse do not show up, the Court will usually send you a second Notice To Appear. If you miss the second Status Conference the Judge can dismiss your case, assuming that you no longer wish to get divorced. This means you may have to start from scratch and pay filing fees again and start over with your 6 month waiting period.

If I'm in Mediation, Do I Have to Go?
In mediation, we file an agreement telling the Court that you are in mediation. The Court then postpones the Status Conference for a period of one year. This gives you an entire year from the date you file your Petition to get everything done and filed with the Court. If you finish within that one year period you should never have to go to Court!

Do Both Parties Have to Agree to Use Divorce Mediation? by Robin Seigle, J.D., Director, NCRC Divorce Mediation Services

In order for a couple to use NCRC's Divorce Mediation Services, which are private and confidential, both parties have to agree to use the service. NCRC cannot force anyone to come to mediation.

Occasionally, a Family Court Judge, with agreement by the parties' attorneys, will send a case to NCRC for mediation. Otherwise, everyone else who attends a mediation session does it voluntarily.

Examples of situations where one party does NOT want to come to mediation and strategies for addressing them :

Issue 1: Where one party does not want the divorce at all, he or she doesn't want to make it easier for the other party to get the divorce.

Strategy 1: A person can get a divorce even if the other person does not want it, i.e. they both don’t have to want the divorce, in order for one of them to get it. If the case goes to court, rather than mediation, the person who doesn’t want the divorce will likely be put into an adversarial situation where the opportunity to demonstrate cooperation is more difficult or non-existent. Neither person has control over the timing of court hearings and less control of the decisions.
In mediation, both parties have a role in determining the timing of the process, as well as the outcome. When they are able to work together cooperatively, it might lead the person who wants the divorce to “re-think” whether divorce is the preferred outcome.

Issue 2: Where one party doesn't want to spend the money.

Strategy 2: Mediation is much less costly than a litigated divorce. Generally, mediation costs between $2000 and $5000 total (shared by the parties). If one person is concerned about spending money, the other party can agree to pay for the first session and if at that point the other person agrees to continue, they can agree to share the costs. Or, one person pays for the mediation and it can be equalized through the division of property in the settlement.

Issue 3: Where one party feels that the other has an advantage over him/her due to having more knowledge or more ability to speak up and negotiate for him/herself. Sometimes one party does not feel comfortable attending mediation witout the assistance of an attorney.


Strategy 3: Where there are information or personality style imbalances, the person who feels disadvantaged can do what it takes to bring him/herself up to the level of the other person. They can do so by seeking out advice from experts (attorneys, financial planners) outside of mediation or by bringing those consultants with them to the mediation. NCRC allows parties to bring attorneys with them to mediation as long as the other person does not object.

Issue 4: Where there is a history of domestic violence and one party is afraid of the other.

Strategy 4: Mediation requires both parties to speak up for themselves and make decisions based on their assessment of their respective best interests. If someone is afraid of another party and makes decisions because of that fear, mediation is not the best place for them. We never want anyone to agree to something because they are afraid not to agree.

So even though NCRC cannot “force” someone to come to mediation, we can help you strategize how to get them to agree to try it.

How Divorcing Couples Can be Dollar-Wise

by Robin Seigle, J.D., Director, NCRC Divorce Mediation Services

During the best of times, spending money getting divorced is similar to buying tires or seeing the dentist...it is not very much fun. During financially difficult times, many couples are finding that they have less income to work with and/or their future earnings are uncertain. The big assets most couples have, their house and/or their stock portfolios, are worth much less now than they were a year ago. Consequently, spending money getting divorced may be substantially more difficult, particularly in light of having to run two households on the same income(s).

I speak to dozens of divorcing people in the course of a month. In many cases, both parties have concluded that they do not want to hire separate attorneys and spend time and money fighting over things or their children. In some cases, one party or the other wants to use mediation, and the other person does not want to spend money on the cost of mediation. They sometimes want to use paralegals or try to do it themselves. Two options for doing it for oneself are to get a “Do-it-Yourself” book or to see the Family Law Facilitator, available on a first-come first served basis at each of the Family Courts in San Diego County.

The Family Law Facilitator, closely resembles a legal emergency room for family law clients, as parties stand in long lines before signing-in for an on-the spot appointment with an attorney, for which the person might wait a few more hours. The attorney does not provide legal advice, but information about how to file papers as a “pro per”: (person acting as their own attorney). For couples who don’t own a home and have few assets, the Family Law Facilitator can be relatively easy and no-cost (other than filing fees unless they are waived) way to get papers filed. Workshops are provided weekly to educate a group of people how to do that.

On the other hand, for couples that own homes, own businesses, have retirement plans or pensions, and/or have issues of child and or spousal support, there is middle ground between spending tens of thousands of dollars fighting in court and spending almost nothing by using the Family Law Facilitator. Mediation, conducted by Family Law attorneys, is a means to discuss the issues that must be addressed for a court to sign off on a couple’s agreement, which include:

· Division of property - assets and debts
· Support - spousal and/or child
· Parenting - including where the child lives

Each of these topics comes with legal, financial, personal-emotional, and possibly tax implications. NCRC’s Divorce Mediators, as family law practitioners, can provide important information about the legal and financial consequences, some creative ways that other clients have addressed similar issues, and a neutral environment in which to discuss the issues. These issues should be understood by both parties before they make decisions that they might regret later, or which prove to be illegal or unenforceable. If they have an idea of what they want to do, and it differs from what a court would do if a judge had to decide, they can generally do what they want to do, as long as they understand the differences.

With an hourly rate of $250 per hour, shared by the couple, a one-time administrative fee of $125 per person to cover copies, postage, messenger service, and time communicating with staff, if the NCRC mediator prepares their legal paperwork and $1800 –3500 for all of their legal paperwork, a complete divorce (discussion/negotiation, resolution, and paperwork submitted to the court for a judge’s approval) can be accomplished for as little as $2500 total (not including the court’s filing fees). The couple controls the number of meetings, the length of the meetings (NCRC reserves two hours, but some couples only use an hour at a time), when they are held, how often they are held, and the timing for preparing and submitting any legal paperwork to the court.

The Divorce Mediation process provides a client-centered process, information that will lead to informed consent, the mediator to keep the discussion focused and productive, and a means to an end that has benefits well beyond being Dollar-Wise.

Don't Use "Force"

By Bill Eddy, LCSW, Esq.

“I won’t force the children to go with the other parent,” is one of the statements I hear sometimes from parents going through a separation or divorce. This statement has become so common (three times in one day recently), that I decided a short article on this subject would be helpful.


Expectations
Parents have a lot of expectations for their children, for their own benefit. You expect them to go to school. You expect them to do their homework. You expect them to come home at night. You expect them to brush their teeth. You expect them to do their chores. You expect them not to swear in public. You expect them not to have sex. You expect them not to use drugs, etc., etc.
We use all of our resources to “force” them to do (or not do) these things. But we don’t use the word “force” with these activities. We use the word “expect.” A positive word for their long-term benefit, rather than a negative word. And your children get the message. So try not to use the word “force,” with all its negativity. Instead, use the positive word “expect.” “I expect you to go with your mother/father – we both expect that.”

It’s Not an Option
Of course, children will resist doing a negative option. They don’t want to see the dentist. They don’t want to go to school on some days. Even parents don’t want to go to work on some days. But most of us go to work anyway, because we need to get paid. It’s not an option to stay home.
Somehow, children get the message that going to the other parent’s house after a separation or divorce is optional. If you give them a choice and imply it will be a negative experience, any healthy child is going to want to avoid it. Since children have so few options in their lives, if you give them an option to avoid something negative, they will avoid it.

Children Don’t Like Moving
Most of the time, children like being where they are. When given a choice, many children who live in two households would rather stay where they are at the moment. It doesn’t mean that they don’t want to see their Mom or Dad, it just means that they don’t want to stop what they’re doing, get up, pack up, and go somewhere else. Once they get to the other house, they act just the same way. Don’t take it personally: most of the time children just prefer where they are and what they’re doing. They live in the present.

Use Positive and Negative Consequences
If children don’t do the things that we expect, we usually use consequences with them rather than physically picking them up and taking them. This is especially true with teenagers. Instead, we take away privileges or give them new opportunities when they succeed.
Take school, for example. If your child refuses to go to school, do you: Take them out for ice cream? Spend more personal time and attention with them? Take them shopping or to the movies? Allow them to watch TV all day? Surf the internet? If you do, do you think they would increasingly stay away from school? Of course. I have worked with families where this occurred. Instead, if a child resists spending time with the other parent without a very good reason, use the same consequences you would use if they refused to go to school. And don’t blame it on the other parent – just be matter-of-fact. In a separation or divorce, attitude is everything.

Avoid Assumptions
In a separation or divorce, it’s easy to misinterpret a child’s resistance to spending time with one of the parents. It may be about something very minor and the child will change his or her mood soon, unless you give this mood excessive attention or power.
It is easy for a parent to jump to the conclusion that the child has the exact same thoughts about the other parent, such as complicated anger about adult issues that the child may not know about or understand. Or you may be concerned that your child’s sadness or anger toward the other parent may mean he or she has been abused or treated badly. While these things could be true, be careful to check them out without making assumptions.

Emotions are Contagious
On the other hand, children do absorb their parent’s emotions. It’s an important part of how they learn about life, and how they stay connected to their parents. Recent brain research explains how “mirror neurons” cause children to mirror their parents’ emotions, as well as behavior. So your child may have picked up your intense emotions about the separation or divorce, and show the exact same fear, sadness, or anger – yet have no logical explanation for it. While it may seem like the child has the same feelings and thoughts that you do, your child may actually just have the same feelings – your feelings.
So be careful not to let your child see or hear your upset feelings about the other parent. Arguments or physical confrontations between parents that are observed by a child can be particularly distressing for a child and may increase their resistance to one parent. Children need to be protected from their parents’ behavior sometimes.

Get Family Counseling
If a child develops a resistance to spending time with one parent, it is potentially a serious problem which needs to be treated sooner rather than later. If there is a child abuse issue, it needs to be addressed and stopped. If there has been domestic violence (an incident or a pattern), then this is an important problem to be treated, rather than ignored. Children may be the first to show a problem which needs family attention. And if it is a child absorbing a parent’s negative emotions about the separation or divorce, this also needs to get addressed and resolved. Often the best approach is for a counselor to meet with each parent and the child or children before resistance turns into refusal. And if a child is refusing to see a parent, then it is even more important to take this approach as soon as possible. By meeting with both parents at separate times with the child or children, parents can help and support each other in helping their child. Getting an individual counselor for the child is less effective.

Conclusion
Maybe you can’t “force” a child to spend time today with one parent. But you can have consequences, investigate the situation, and get the help of a family counselor. In the long run, it will be better for all of you. © 2009 High Conflict Institute
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Bill Eddy is the President of the High Conflict Institute, LLC, based in Scottsdale, Arizona, and the Senior Family Mediator at the National Conflict Resolution Center in San Diego, California.

What Is the Parenting Plan?

By Shawn Skillin, Esq., Mediator

When a couple with children divorces they have to let the court know how they want to share the responsibility for, decision-making about and time with the children. California policy states that children benefit by having frequent and continuing contact with both parents. There are some exceptions to this general policy such as in cases of child abuse, neglect, domestic violence, or substance abuse, but most couples can expect that if they dispute custody and visitation in court, the court will order them to share their children.

JOINT LEGAL CUSTODY
First, they will have to decide how to make decisions regarding the health, education and welfare of their children. This involves such decisions as which pediatrician they see, what school they attend, what religion (if any) they practice and when or if to get braces on their teeth. Generally, parents share equally in these decisions. This is referred to as “Joint Legal Custody.” It means that before you change schools, doctors or dentists you should discuss with each other what is best for your child. Occasionally, when one parent is difficult to deal with on these issues, the court may give decision making to one parent. With Joint Legal Custody both parents have access to school and medical records for their children and can consult with any professional the children are seeing.

PARENTING PLANS
Second, the parents must develop a “parenting plan.” This is simply a schedule of when the children will be with Mom and when they will be with Dad. There are as many different parenting plans as there are families. This plan can be very general, such as “the children shall spend time with each parent as they mutually agree.” Or, it can be very detailed setting out just which days the children will be with each parent, how holidays shall be spent and when the children can go on vacation with each parent.

Parenting plans are not generally set in stone. They can change and evolve as the parents’ schedules change, the children get older and their needs change or when the parents come up with a better plan. Having a plan in writing is required in every divorce agreement when children are involved, but this doesn’t mean you can’t make special agreements to deviate from the plan as long as you both agree. Parenting plans often evolve over time as the parties figure out what works and what doesn’t. Permanent changes should be reduced to writing and filed with the court, just in case a problem comes up later.

THINGS TO CONSIDER WHEN DEVELOPING A PARENT PLAN
· The ages and developmental stages of your children
· The personality of each child. Does the child adapt well to change? Does the child need more structure?
· Who generally helps with homework?
· How do the parents’ work schedules mesh with school and daycare schedules? Younger children need to see parents more frequently and may not do well if they do not see one of the parents for an entire week. Older children may prefer to spend one week at a time with each parent and not go back and forth during the week. You also may want to consider building in some one on one time with each child.
· Be creative, every family is different, make your parenting plan work for you and your children.

HELP FROM A COUNSELOR
A counselor can help you assess the developmental stages of your children and make suggestions regarding what is appropriate for your children.
Young children may need some help understanding the parenting plan schedule. Try setting up a calendar in the kitchen at each home and color coding it with stickers. Blue for Dad’s house, pink or green for Mom’s. Cross off each day as it passes. This gives the child a visual clue of when they will next see the other parent.

LONG DISTANCE VISITATION
Today, many families live far apart from one another. Luckily, technology gives parents and children many ways to keep in touch whether they live across town, across the country or around the globe. These innovative ideas can be incorporated into your parenting plan. For example, each parent may have a computer with a camera, so that children may communicate with the other parent and see each other while they talk. Some long distance parents use this technique to read to their children, help with homework or show off new toys, clothes or pets. With e-mail, faxes, scanners, and computers with cameras, keeping in touch with your children is easier than ever. The parenting plan can contain a schedule for visitation by computer, e-mail or chat room.

Work together, be flexible and consider the needs of your children and you can create a custom parenting plan that really works for your family!

Excerpted from YOUR FAMILY MEDIATOR
A Newsletter of the National Conflict Resolution Center

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Shawn Skillin a Family Mediator at the National Conflict Resolution Center in San Diego, California.